United States District Court, D. North Dakota
MEMORANDUM & ORDER
WILLIAM G. YOUNG DISTRICT JUDGE 
Gray (“Gray”) brings this action against the
Devils Lake Public Schools, Lake Region Special Education
(“LSRE”), Barry Sundeen, individually and as
Director of Harmony House, Lee Ann Johnston, Steve
Halldorson, Jeff Frith, Jason Hodous, and Cory Meyer,
individually and as members of Devils Lake Public Schools
School Board, Catherine Miller individually, the Ramsey County
District Court (“RCDC”), Kari Agotness,
State's Attorney of Ramsey County, and Wayne Stenehjem
(“Stenehjem”), Attorney General for North Dakota,
alleging retaliation under chapter 42 of the United States
Code, sections 1983 and 1988, the Civil Rights Act, North
Dakota Century Code, sections 50-25.1-09.1 and 34-01-20, and
defamation. Gray also requests declaratory relief from a
permanent injunction in Civil Case No. 36-2016-CV-00299,
Devils Lake Public Schools v. Katherine Gray (the
“injunction”), issued by the RCDC, as well as a
writ striking down the injunction.
and Stenehjem (collectively the “State
Defendants”) move to dismiss the claims against them,
arguing that the Court does not have jurisdiction to hear the
case and should abstain from doing so because: (1) the State
Defendants enjoy immunity from suit; and (2) Gray's
claims against the State Defendants are a collateral attack
on the injunction issued by the RCDC and should properly be
reviewed by a state appellate court.
filed her complaint on March 16, 2017, alleging a First
Amendment retaliation claim (count I) against Defendants
Sundeen, Johnston, Halldorson, Frith, Hodous, and Meyer;
retaliation in violation of Title VI of the Civil Rights Act
(count II) against Defendants Devils Lake Public Schools and
LRSE; unlawful retaliation in violation of North Dakota
Century Code § 50-25.1-09.1 (count III) against
Defendants Devils Lake Public Schools and LRSE; unlawful
retaliation in violation of North Dakota Century Code §
34-01-20 (count IV) against Defendants Devils Lake Public
Schools and LRSE; defamation (count V) against Defendants
Devils Lake Public Schools, LRSE, and Miller; a declaratory
action for violations of the First Amendment and 42 U.S.C.
§ 1983 (count VI) for the injunction issued by the RCDC;
and a petition for a writ under the All-Writs Act, 28 U.S.C.
§ 1651 (count VII) for the injunction issued by the
RCDC. Compl., ECF No. 1. RCDC and Stenehjem moved to dismiss
counts VI and VII on May 2, 2017, and all parties have fully
briefed the issues. Defs.' Mot. Dismiss (“Defs.
Mot.”), ECF No. 9; Defs.' Mem. Law Supp. Mot.
Dismiss (“Defs.' Mem.”), ECF No. 10;
Pl.'s Opp'n Defs.' Mot. Dismiss (“Pl.'s
Opp'n”), ECF No. 13; Defs.' Reply Pl.'s
Opp'n (“Defs.' Reply”), ECF No. 19. On
January 22, 2018, the parties filed a stipulation waiving the
scheduled oral argument and proposed that this Court decide
the case based on the related documents filed with the Court.
Joint Stipulation, ECF No. 44. This Court adopted the
stipulation. See ECF No. 49.
a social worker who began working as a full-time Direct Care
Provider at Harmony House. Compl. ¶¶ 15-16. Harmony
House is a residential and boarding care facility for at-risk
youths in Devils Lake, North Dakota. Id. at ¶
4. It is jointly operated by the Devils Lake Public Schools
and the LRSE. Id. at ¶ 5. Gray also worked as a
substitute teacher at the Devils Lake Public Schools.
Id. at ¶ 17. Gray alleges that during her
employment at Harmony House, she “maintained
satisfactory performance and developed a good rapport with
the children in her care.” Id. at ¶ 18.
Kosmatka (“Kosmatka”) was an employee of Harmony
House during Gray's employment. Id. at ¶
20. Gray alleges that Kosmatka frequently abused and
threatened the children at Harmony House, particularly the
Native American children. Id. at ¶¶ 21-26.
Gray alerted her direct supervisor, Barry Sundeen
(“Sundeen”), on several occasions between 2015
and early 2016, that she believed that Kosmatka had been
engaging in inappropriate behavior with some of the children
at Harmony House. Id. at ¶¶ 27, 35. She
also informed him that Harmony House did not offer any
spiritual support for the resident Native American children
at the boarding home. Id. at ¶ 36. Gray claims
that Sundeen promised that he would speak to Kosmatka, but he
never did and Kosmatka's inappropriate behavior
continued. Id. at ¶¶ 28, 30-33, 37.
around the fall of 2015, Gray made a report with the
Sweetwater Elementary School regarding a first-grade teacher
who she believed had been abusive toward one of the students.
Id. at ¶ 38. Gray alleged that the teacher had
“physically turned a child's chair around, forced
his hands in his lap, and then used two hands to force his
head up, jerking his neck.” Id. She also
claimed that the teacher verbally abused another special
needs student. Id. Gray claimed that the Sweetwater
Elementary School did not address any of her reports of
abuse, and that the teacher continued to engage in abusive
behavior towards the students. Id. at ¶ 39.
After the reports were filed, Gray left her teaching position
at the Sweetwater Elementary School. Id. at ¶
2, 2016, Gray alleges, she saw Kosmatka call a child at
Harmony House “fat” twice, and he then
“grabbed and squeezed [the child's] stomach with
both hands and shook him.” Id. at ¶ 41.
Kosmatka acknowledged that he acted inappropriately, but
stated that he had known the child for a while and could do
what he wanted. Id. at ¶ 42. Gray did not
report the incident to Sundeen because she believed Kosmatka
would do it himself. Id. at ¶ 43.
11, 2016, Gray received an email from Sundeen instructing her
to “report any interactions between staff and students
that [you] believe is inappropriate to [Sundeen] or
Danielle.” Id. at ¶ 45. Following a staff
meeting on May 12, 2016, Gray described the May 2 incident to
Sundeen. Id. at ¶ 46.
same day, Gray filed a formal complaint against Kosmatka and
Sundeen with the North Dakota Department of Human Services
and the Board of Social Work Examiners. Id. at
¶ 47. In her formal complaint, Gray alleged that
Kosmatka physically and verbally abused the children and
lacked sensitivity towards the Native American children at
Harmony House. Id. at ¶ 48. Gray also alleged
that Sundeen had made several derogatory remarks about the
residents and failed to address Kosmatka's conduct when
it was brought to his attention and instead covered up the
incidents. Id. at ¶ 49.
around mid-May of 2016, Sundeen transferred Gray to the night
shift, from 9 P.M. to 9 A.M. Id. at ¶ 51.
According to Gray, it is normal practice at the Harmony House
to transition employees into the night shift gradually, but
her transition had been effective immediately. Id.
On May 31, 2016, Gray suffered multiple tibia fractures and
was on medical leave from June 1 to June 15 of 2016.
Id. at ¶ 52. She returned to work in a
wheelchair and continued to work the night shift. Due to her
recent injury, Gray alleges, it became difficult for her to
work the night shift, and she so informed Sundeen.
Id. at ¶ 53.
23, 2016, Gray attended a full day of work-related training,
and then went to Harmony House to work the night shift.
Id. at ¶ 54. That same night, Gray informed
Sundeen that she would be testifying at the Ramsey County
Department of Human Services about her complaint the next
morning, June 24. Id. at ¶ 55. On June 27,
2016, Sundeen fired Gray. Id. at ¶ 58. Sundeen
did not provide an explanation other than that Gray's
“employment with Harmony House [was] not working
out.” Id. at ¶ 59.
August 21, 2016, Gray once again reported Kosmatka for child
abuse, but this time to the Devils Lake Police Department and
the Devils Lake School Board, after she learned that Kosmatka
had inappropriately touched a child at Harmony House.
Id. at ¶¶ 62-63. She proceeded to contact
the child and the child's representative directly and
told them that the police wanted to speak to the child
regarding the incident. Id. at ¶ 64. Between
August 21 through September of 2016, Gray and the child
continued to communicate regarding the abuse. Id. at
¶¶ 64, 65, 67. Gray received a letter from the
Devils Lake Public Schools on August 25, 2017, advising her
that she could not communicate with the children at Harmony
House or include their names in documents not authorized by
Harmony House, and warned her that if she ...