Opinion
Case No. 17-22926-CIV-WILLIAMS
2019-07-01
Jane DOE, Plaintiff, v. The SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, Defendant.
Ronald Peter Weil, Ronald Weil PA, Iva Uroic Ravindran, Weil Snyder Ravindran, P.A., Mark A. Schweikert, Schweikert Law PLLC, Miami, FL, for Plaintiff. Michael E. Brand, Sheila Mae Gonzales, Cole Scott & Kissane, Miami, FL, for Defendant.
Ronald Peter Weil, Ronald Weil PA, Iva Uroic Ravindran, Weil Snyder Ravindran, P.A., Mark A. Schweikert, Schweikert Law PLLC, Miami, FL, for Plaintiff.
Michael E. Brand, Sheila Mae Gonzales, Cole Scott & Kissane, Miami, FL, for Defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Defendant's motion for summary judgment (DE 61-63), Plaintiff's response in opposition (DE 85-86), and Defendant's reply (DE 94). For the reasons below, Defendant's motion is GRANTED IN PART AND DENIED IN PART .
I. BACKGROUND
This lawsuit stems from an alleged sexual assault at Miami Palmetto Senior High School ("Palmetto") committed by Jason Meyers, a teacher employed by Defendant, the School Board of Miami-Dade County, Florida ("School Board"), against Plaintiff Jane Doe. Doe has brought claims against the School Board under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), 42 U.S.C. § 1983, the Florida Educational Equity Act, Fla. Stat. § 1000.05 ("Florida Educational Equity Act"), and Florida tort law. As discussed below, these claims are based on two questions: 1) whether the School Board had actual notice of, and was deliberately indifferent to, the risk that Meyers posed to students, and 2) whether there was a municipal action taken with deliberate indifference to its known or obvious consequences. By way of background, the School Board had a number of written policies and procedures relating to sexual conduct and child abuse. (Def.’s Statement of Material Facts ("DSMF"), DE 63 at ¶ 6). There was a written policy prohibiting employees from "engaging in unacceptable relationships and/or communications with students," which included "dating; any form of sexual touching or behavior; making sexual, indecent or illegal proposals, gestures or comments; exploiting an employee-student relationship for any reason; and/or demonstrating any other behavior which gives an appearance of impropriety." (Id. ). There was also "a written rule containing complaint procedures for discrimination/harassment of students," which, the Parties agree, "was expressly intended to effect compliance with federal/state regulations, including Title IX." (DSMF, DE 63 at ¶ 7; Pl.’s Response to DSMF ("PSMF"), DE 85 at ¶ 6-7). These procedures required all principals "to make a conscientious effort to fully consider and understand the nature and basis of the discrimination or harassment complaint of a student/parent and resolve it, to the satisfaction of the complainant, without delay or refer it, without delay, to the appropriate office for resolution." (Id. ). The School Board established these procedures "to assure nondiscrimination in education activities/programs and the elimination of harassment, including sexual harassment." (Id. ).
The School Board does not seek summary judgment against Doe's claim brought under Florida tort law. Thus, this analysis relates only to the claims brought under Title IX, 42 U.S.C. § 1983, and the Florida Educational Equity Act.
To investigate complaints of sexual misconduct by its employees, the School Board had a "Personnel Investigative Model, User's Guide" ("PIM"), and had written policies and procedures provided by its Office of Professional Standards ("OPS"). (DSMF, DE 63 at ¶ 12; DE 85-19). OPS’ 2007-2008 Procedures Manual reads, in pertinent part, as follows:
Miami-Dade Schools Police (M-DSP) makes an initial determination whether an incident constitutes a potential crime to be investigated by M-DSP. If a Preliminary Personnel Investigation is assigned, the fact-finding is conducted by a M-DSP General Investigative Unit (GIU) investigator, not the site administrator. The M-DSP informs the employee that he/she is under investigation. The M-DSP [GIU] investigator completes a Preliminary Personnel Investigation Report (PI) and forwards it to OPS for review with the Regional Center/District staff. The site administrator and Regional Center/ District Office is then informed of the findings.... If Probable Cause is found and the allegation rises to a level that may warrant district disciplinary action, OPS will schedule a district level conference-for-the-record (CFR) to include the employee, the site administrator, the Regional Center/District Business or Personnel Director and the Union Representative, if applicable, appropriate, and requested.
(DE 85-19 at 60). If M-DSP determines that an allegation may involve criminal conduct, the procedures require that "GIU ... notify the employee in writing of the allegation as soon as it is appropriate." (Id. ). Further, under the procedures, "[a]ny proposed disciplinary action resulting from a Preliminary Personnel Investigation must be reviewed with the Regional Center/ District Director designated for personnel issues." (Id. ).
The School Board hired Meyers in 2002 to be an English teacher at Dr. Michael M. Krop Senior High School ("Krop"). (DSMF, DE 63 at ¶ 2). Meyers taught at Krop from 2002 until 2011. Id. In 2011, he requested, and received, a transfer to Palmetto, where he continued his employment with the School Board. Meyers taught at Palmetto from 2011 until February, 2016, when he was arrested for sexual battery on a minor. (Id. at ¶¶ 1, 3).
This individual is not a party to this lawsuit.
Doe began attending Palmetto during the 2013-2014 school year, and was a student in Meyers’ Creative Writing class during her sophomore, junior, and senior years of high school. (Id. ¶ 13). She asserts that during the 2014-2015 and 2015-2016 school years at Palmetto, while she was a 16 and 17-year old student, Meyers repeatedly sexually harassed and abused her. (DE 32; DE 82; PSMF, DE 85 at ¶ 42). According to Doe, "Meyers’ general modus operandi included singling out minor female students in his Creative Writing class for special attention, and meeting one-on-one with his victims behind closed doors in his classroom before, during, and after school to work on their ‘writing.’ " (PSMF, DE 85 at ¶ 41). Doe contends that "[a]t no point did Palmetto's principals ever direct Meyers not to meet alone with female students in his classroom behind closed doors or otherwise monitor his behavior." (Id. ). Indeed, Doe believes she is "one of many underage female students that Meyers recruited, groomed, and exploited in a systematic fashion ...." (DE 32).
As early as 2008, a complaint of inappropriate conduct was lodged against Meyers. (PSMF, DE 85 at ¶ 25; DE 32). In September, 2008, William Perkins sent an email to Judith Anderson, the secretary to Krop's then-Principal, Dr. Matthew Welker. (DSMF, DE 63 at ¶ 16; Deposition of William Perkins ("Perkins Dep."), DE 85-5 at 6-7; DE 11). The email states:
Although the sender of the email appears to be "Cameon Perkins", it is undisputed that William Cameron Perkins was the sender. (PSMF, DE 85 at ¶ 16; DSMF, DE 63 at ¶ 16).
Sorry to inform you of this but there are some questionable things going on in your school, that I think as well as others would think should be taken care of.
J. Myer's [sic] ... I believe he is your Writting [sic] teacher is having sex with stundents [sic] and former students of your school being Dr. Michael Krop Senior High
I think its morally wrong and should have some action taken to prevent this kind of activities
Crime Stoppers have been contacted as well and will have an ongoing investigation with this matter
(DE 11). At the time, Perkins was not a student at Krop, nor any other school in Miami-Dade County, but was the boyfriend of a student attending Krop. (DSMF, DE 63 at ¶ 16).
The Parties do not dispute that the email was sent to Principal Welker's secretary, but dispute the actions taken in response to the email. (DSMF, DE 63 at ¶ 16-19; PSMF, DE 85 at ¶ 16-19). According to the School Board, Officer Darryl Dunn, Krop's School Resource Officer ("SRO"), "prepared a police report (also known as a "SPAR" School Police Automated Reporting)" and "[a]lthough [he] did not have an independent recollection of his 2008 investigation, as the SRO, [he] gathered information, interviewed Meyers, prepared a police report, included the names of the people that were alleged to be involved, and forwarded the information to the appropriate people," and also met with Meyers, "who denied the allegation." (DSMF, DE 63 at ¶ 17). Doe points to Officer Dunn's deposition testimony, where he stated that he "just forwarded the [SPAR] report" and did not write the information provided in the report's narrative section, to dispute the School Board's characterization of Officer Dunn's actions taken in response to Perkins’ email. (Deposition of Officer Darryl Dunn ("Dunn Dep."), DE 64-11 at 79-80).
The "narrative section" of the SPAR report, as discussed during Officer Dunn's deposition, states: "Reporter sent an email alleging that teacher, Jason Meyers, is having sex with students and former students. MPSD detectives contacted the reporter who did not wish to provide the names of any involved. Information was documented. No further action will be taken." (Dunn Dep., DE 64-11 at 79).
Further, Doe proffers Principal Welker and Lieutenant Bradley Rosh's deposition testimonies to show that the School Board failed to comply with its own written procedures in response to Perkins’ email. Principal Welker testified that he did not recall completing an allegation reporting form and has not seen such a form in connection with Meyers. (Deposition of Matthew Welker ("Welker Dep."), DE 85-6 at 50). Principal Welker also testified that, to his knowledge, he never spoke with Meyers about closing the case or reviewing the report with him, and has not seen a probable cause finding with respect to Meyers. (Welker Dep., DE 85-6 at 52). Lieutenant Rosh testified that, to his knowledge, a preliminary personnel report was not created in connection with Perkins’ email in 2008, alleging Meyers was having sex with students at Krop. (Deposition of Lieutenant Bradley Rosh ("Rosh Dep."), DE 85-8 at 20).
The Parties also dispute whether Perkins was contacted by the Miami-Dade School Police in response to his email, or whether he simply could not recall. The School Board contends that Perkins could not recall but Doe proffers Perkins’ deposition testimony, in which he testified that he was not contacted by any Miami-Dade School Police detectives. (Perkins Dep., DE 85-5 at 13). Specifically, in Perkins’ deposition testimony, he testifies that he did not recall the school contacting him, but as far as any kind of police , "no police ever contacted [him]." (Perkins Dep., DE 85-5 at 15) ("... I don't recall the school contacting me. As far as any kind of police, no. No police ever contacted me.").
In addition to Perkins’ complaint, Doe also relies on a complaint made by Dayson Roa, a then-senior in Meyers’ Creative Writing class at Krop, to establish actual notice on the part of the School Board. However, according to the School Board, "[t]here were never any other complaints reported at Krop involving a teacher having inappropriate relations with a student while Meyers was a teacher at that school." (DSMF, DE 63 at ¶ 20). Doe vehemently rejects this proposition, and states that not only did Roa provide notice to the School Board during the 2009-2010 school year, but in addition, at least three employees at Palmetto "were aware that Meyers posed a substantial risk of sexual abuse of female students before his arrest." (PSMF, DE 85 at ¶ 5).
In support, Doe proffers Roa's deposition testimony, in which he testified that he scheduled an appointment with Krop's Assistant-Principal at the time, Francisco Garnica. (Deposition of Dayson Roa ("Roa Dep."), DE 85-10). At that appointment, Roa testifies, he sat across from Garnica, and informed him that he knew "multiple students that had relationships with [Meyers] post – right after they had graduated", that he knew Meyers was engaging in inappropriate conduct with students during a school-related trip to New York, and that he knew about another student that Meyers "was making – [ ] was moving towards." (Id. at 4-5, 12). In response, the School Board asserts that Garnica testified he never received such a complaint from Roa. (DE 92).
II. LEGAL STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under the governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And any such dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In evaluating a motion for summary judgment, the Court considers the evidence in the record, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or others materials ...." Fed. R. Civ. P. 56(c)(1)(A). The Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta , 520 F.3d 1269, 1274 (11th Cir. 2008) (quotation marks and citations omitted). At the summary judgment stage, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505.
Finally, "[s]ummary judgment for a defendant is appropriate when the plaintiff ‘fails to make a sufficient showing to establish the existence of an element essential to [his] case, and on which [he] will bear the burden at trial." Cleveland v. Policy Mgmt. Sys. Corp. , 526 U.S. 795, 805-06, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Thus, "[i]f the non-movant ... fails to adduce evidence which would be sufficient ... to support a jury finding for the non-movant, summary judgment may be granted." Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1370 (11th Cir. 1997) (citation omitted).
III. DISCUSSION
The School Board maintains that it is entitled to summary judgment on Doe's claims brought under Title IX, 42 U.S.C. § 1983, and the Florida Educational Equity Act, because Doe has not and cannot establish that 1) the School Board "had actual notice of, and was deliberately indifferent to, Meyers’ misconduct" and 2) "an officially executed policy, or the toleration of a custom within the school district led to, caused, or resulted in the deprivation of [Doe's] constitutionally protected rights." (DE 61).
A. Title IX Claim (Count I)
Title IX provides, in pertinent part, that "[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has recognized that "sexual harassment of a student by a teacher constitutes actionable discrimination for the purposes of Title IX." Davis v. DeKalb Cnty. Sch. Dist. , 233 F.3d 1367, 1371 (11th Cir. 2000) (citing Franklin v. Gwinnett County Public Schools , 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) ). In Gebser v. Lago Vista Indep. Sch. Dist. , the Court clarified the standard under which "a school district may be held liable in damages ... for the sexual harassment of a student by one of the district's teachers." Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Specifically, "damages may not be recovered ... unless an official of the school district who at a minimum has authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct." Id.
The Eleventh Circuit has examined the Court's standard in Gebser and determined that the following three inquiries are required in the summary judgment context: "[f]irst, the plaintiff must be able to identify an ‘appropriate person’ under Title IX, i.e., a school district official with the authority to take corrective measures in response to actual notice of sexual harassment. Second, the substance of that actual notice must be sufficient to alert the school official of the possibility of the Title IX plaintiff's harassment. And finally, the official with such notice must exhibit deliberate indifference to the harassment." Doe v. Sch. Bd. of Broward Cnty., Fla. , 604 F.3d 1248, 1254 (11th Cir. 2010) (citations omitted).
In this case, the Parties do not dispute that Principal Welker at Dr. Michael Krop Senior High School was an "appropriate person" under Title IX, in that he had the authority to take corrective measures in response to any sexual harassment. See Doe v. School Bd. of Broward Cnty., Fla. , 604 F.3d 1248, 1255 (11th Cir. 2010) ("concluding that Principal Scavella, as the highest-ranking school official on site at Blanche Ely High School, was high enough on the chain-of-command to impute [Title IX] liability to the School Board") (quotation marks omitted). Rather, the Parties dispute whether the School Board had actual notice that Meyers might sexually assault a student and, if so, whether the School Board responded to that notice with deliberate indifference.
i. Actual Notice
Establishing actual notice is difficult, but the Eleventh Circuit has found there to be such notice in cases that involved multiple prior incidents of sexual misconduct that closely resembled the incident at issue. Doe v. Sch. Bd. of Broward Cnty., Fla. , 604 F.3d 1248, 1250-53, 1257-59 (11th Cir. 2010) (holding that multiple factually-similar complaints of sexual harassment by two different students was sufficient to provide actual notice where those complaints significantly resembled the subsequent sexual assault at issue); Williams v. Bd. of Regents of Univ. System of Ga. , 477 F.3d 1282, 1289-90, 1294 (11th Cir. 2007) (holding that a Title IX claim survived a motion to dismiss where the school officials who recruited the student-athlete assailant knew that "he previously had disciplinary and criminal problems, particularly those involving harassment of women, at other colleges"). Notably, no circuit has interpreted the actual notice requirement "so as to require notice of the prior harassment of the Title IX plaintiff herself. " Doe , 604 F.3d at 1257.
On the other hand, the Eleventh Circuit has recognized that "some prior allegations of harassment may be sufficiently minimal and far afield from the conduct underlying the plaintiff's Title IX claim that they would not alert a school district official of the risk of a Title IX plaintiff's sexual harassment." Id. at 1258. For example, in Gebser , the Supreme Court held that a teacher's sexually suggestive comments during class were "plainly insufficient to alert the principal to the possibility that [the teacher] was involved in a sexual relationship with a student." Gebser , 524 U.S. at 291, 118 S.Ct. 1989. And, in Davis v. DeKalb County School Dist. , 233 F.3d 1367, 1372-73 (11th Cir. 2000), the Eleventh Circuit held that there was "no actual notice of the potential sexual molestation of plaintiffs where the only prior complaint against the teacher alleged an ‘incidental touching’ during a touch football game and a ‘perceived imminent’ touching at a public water fountain." Doe , 604 F.3d at 1258 (characterizing the holding in Davis ).
In this case, Doe argues that the School Board received actual notice that Meyers might sexually assault a student such as Doe in at least two instances: 1) during 2008 when William Perkins emailed Principal Welker's secretary and Meyers himself, reporting that Meyers was having sex with former and current students of Krop (DE 85-11) and 2) during the 2009-2010 school year when student Dayson Roa met with Assistant-Principal Garnica and informed him that Meyers had relationships with former students and had engaged in inappropriate conduct with then-current students during a school-related trip in New York City (Roa Dep., DE 85-10 at 4-5, 12).
The School Board disputes that Perkins’ 2008 email constituted actual notice and states that Assistant-Principal Garnica never received such a complaint from Roa. Indeed, the School Board argues that as to the requirement of actual notice, this case is analogous to Davis . The Court disagrees. Even without considering Roa's complaint, Perkins’ 2008 email to Principal Welker, stating that Meyers "is having sex with students and former students," apprises the School Board of a greater possibility of sexual harassment and/or assault than the "complaint [in Davis ] of an incidental touching during an athletic event and a perceived imminent touching." (DE 85-11); Davis v. DeKalb County School Dist. , 233 F.3d 1367, 1373 (11th Cir. 2000). The School Board seeks to characterize Perkins’ complaint as "involving mere comments from a non-student whose email failed to mention any names of any victims and who intended to send his email anonymously." (DE 92). But "the actual notice standard does not set the bar so high that a school district is not put on notice until it receives a clearly credible report of sexual abuse from the plaintiff-student." Escue v. N. OK Coll. , 450 F.3d 1146, 1154 (10th Cir. 2006) (quoting Doe v. Sch. Admin. Dist. No. 19 , 66 F. Supp. 2d 57, 62 (D. Me. 1999) ). Indeed, "[p]rior instances need not be clearly credible because ... at some point ... a supervisory school official knows ... that a school employee is a substantial risk to sexually abuse children." Id. ; see also Doe , 604 F.3d at 1259 ("Even if prior complaints by other students are not clearly credible, at some point a supervisory school official knows ... that a school employee is a substantial risk to sexually abuse children.") (quoting Escue , 450 F.3d at 1154 ). And even "lesser harassment may still provide actual notice of sexually violent conduct, for it is the risk of such conduct that the Title IX recipient has the duty to deter." Doe , 604 F.3d at 1258. (emphasis added).
Even so, the Court need not determine whether, as a matter of law, Perkins’ email on its own constitutes actual notice. The relevant inquiry is not whether each individual complaint alerted the School Board to the possibility of Meyers’ sexual harassment, but whether when viewed collectively, the complaints provided actual notice. See e.g., Doe , 604 F.3d at 1259 ("The K.F. and S.W. complaints, when viewed collectively, provided actual notice to Principal Scavella of a pattern of sexual harassment ..."). Because the Parties dispute the fact of Roa's complaint to Assistant-Principal Garnica, the Court finds there to be a genuine issue for trial. The School Board claims that Garnica testified he never received a complaint from Roa regarding Meyers’ relations with students. But the record contains evidence of Roa testifying that he scheduled an appointment with Garnica, sat across his desk, and informed him of Meyers’ inappropriate relations with former and current students, including physical interactions between Meyers and a student in a hotel during a school-related trip. (Roa Dep., DE 85-10 at 4-5, 12). Thus, whether, and to what extent, Roa informed Garnica of Meyers’ misconduct is a disputed material fact for a reasonable jury's determination of whether the School Board had actual notice.
The School Board asserts that "no administrators, teachers or staff at Palmetto [ ] had any knowledge regarding Meyers’ sexual abuse or harassment of other students prior to his arrest." (DSMF, DE 63 at ¶ 5). In response, Doe states that at least three employees at Palmetto—two teachers, one of whom was Meyers’ wife, and a school resource officer—had actual notice that Meyers posed a substantial risk to students. (DE 86). The School Board does not address this, and only argues that Perkins’ email does not constitute actual notice and that Garnica testified he never received a complaint from Roa. (DE 92).
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ii. Deliberate Indifference
In addition to actual notice, Doe must also show that the School Board responded with deliberate indifference. "The Title IX inquiry is contextual: it does not require school districts to simply do something in response to sexual harassment; rather they must respond in a manner that is not clearly unreasonably in light of the known circumstances." Doe , 604 F.3d at 1263 (internal quotations omitted). Even if the School Board's response to Perkins’ email could not, as a matter of law, amount to deliberate indifference, the dispute over Roa's complaint raises a material issue of fact as to what actions, if any, would constitute a reasonable response in light of the known circumstances.
"[A] school district is not deliberately indifferent simply because the measures it takes are ultimately ineffective in stopping a teacher from harassing the plaintiffs." Sauls v. Pierce Cnty. Sch. Dist. , 399 F.3d 1279, 1285 (11th Cir. 2005). Rather, the Court must consider whether the Title IX recipient's "response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." The nature of Roa's complaint, if made, informs the "known circumstances from which we evaluate the reasonableness of [the] School Board's response." Doe , 604 F.3d at 1261. For example, in Doe , the Eleventh Circuit explained that once the principal "had actual notice of a second complaint, his failure to institute any corrective measures aimed at ferreting out the possibility of [the teacher's] sexual harassment of his students could constitute deliberate indifference." Doe , 604 F.3d at 1261 (emphasis added). Thus, whether Roa made a complaint to Assistant-Principal Garnica, alerting the School Board "that its remedial action [from Perkins’ complaint] [was] inadequate and ineffective, [requiring it] to take reasonable action in light of those circumstances to eliminate the behavior," is relevant in determining whether the School Board acted with deliberate indifference. Id. at 1261. Accordingly, the Court concludes that a genuine issue of material fact also exists as to deliberate indifference.
As both Parties note, the Florida Educational Equity Act is patterned after Title IX. See Hawkins v. Sarasota Cnty. Sch. Bd. , 322 F.3d 1279, 1286 (11th Cir. 2003) ("Florida has enacted the ‘Florida Educational Equity Act,’ ... which is patterned after Title IX and prohibits discrimination based on race, national origin, sex, handicap, or marital status against any student or employee in the state system of public education."). Therefore, the Court's analysis of Doe's Title IX claim likewise applies to Doe's Florida Educational Equity Act claim.
B. Section 1983 Claim – Policy, Practice, and Custom (Count II)
Doe also brings a claim under 42 U.S.C. § 1983 for the School Board's alleged deprivation of Doe's federal constitutional right to be free from sex discrimination, including sexual abuse, molestation, exploitation, and harassment. See Doe , 604 F.3d at 1265-66 (assuming arguendo that such a claim is cognizable under § 1983 ). The Eleventh Circuit has set out the applicable legal standard as follows:
A plaintiff seeking to impose liability on a municipality (school district) under section 1983 must identify a municipal "policy" or "custom" that caused a deprivation of federal rights. Board of County Comm'rs of Bryan Cty. [Cnty. ] v. Brown , 520 U.S. 397, 403, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997). But it is well established that a municipality may not be held liable under section 1983 on a theory of respondeat superior. See Monell v. Dept. of Social Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, "recovery from a municipality is limited to acts that are, properly speaking, acts ‘of the municipality’-that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati , 475 U.S. 469, 478, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). Moreover, it is not enough to identify conduct properly attributable to the municipality. A plaintiff must show that the municipal action was taken with the requisite degree of culpability, i.e., that the municipal action was taken with " ‘deliberate indifference’ " to its known or obvious consequences. Brown , 520 U.S. at 407, 117 S.Ct. at 1390 (quoting City of Canton v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989) ).
Davis , 233 F.3d at 1375-76 (footnote omitted).
In this case, Doe identifies the School Board's policy of "school administrators (like Principal Welker) [ ] defer[ing] 100% to the School Police with respect to investigating and remediating criminal sexual harassment of students" as the official policy that resulted in the "deprivation of [ ] Doe's right to be free from sexual abuse." (DE 86). Doe relies on the School Board's Office of Professional Standards Procedures Manual to show that the School Board's policy required complete deferral to school police with respect to matters involving criminal sexual harassment of students. (DE 86; DE 85 at ¶¶ 26-27). However, Doe's characterization of the policy misrepresents the actual procedures set forth in the School Board's Office of Professional Standards Procedures Manual. Moreover, even if the policy was to defer entirely to the school police, Doe fails to establish how such deferral caused a Title IX violation. (See DE 85-19 at 60.).
The policy language Doe cites requires that fact-finding be conducted by Miami-Dade School Police. But the policy also requires that the School Board's Office of Professional Standards review, with the Regional Center/District Staff, the preliminary personnel investigation report prepared by Miami-Dade School Police, and for the site administrator and Regional Center/District Office to be informed of the findings. (DE 85-19). Further, if probable cause is found, then the procedures also require the School Board's Office of Professional Standards to schedule a district level conference-for-the-record, which is to include the employee, the site administrator, the Regional Center/District Business of Personnel Director and the Union Representative, if applicable, appropriate, and requested. (Id. ). Indeed, Doe herself refers to these procedures when trying to demonstrate that the School Board acted "[c]ontrary to protocol" in its response to Perkins’ complaint. (DE 85). ("[A] GIU investigator did not conduct any ‘fact-finding’ investigation; nor was a Preliminary Personnel Investigation Report forwarded to OPS for review with the Regional Center/ District Staff.... No one ever informed [Principal] Welker of any alleged ‘findings;’ and the School Board never determined whether there was ‘Probable Cause’ or ‘No Probable Cause’ for Perkins’ allegations; thus, [Principal] Welker never ‘effect[ed] closure’ to the case by meeting with Meyers and reviewing any investigative findings.).
Even assuming deferral to Miami-Dade Schools Police is the School Board's policy, Doe fails to demonstrate how such deferral "caused a deprivation of federal rights." Davis , 233 F.3d at 1375. In her response to the School Board's motion for summary judgment, Doe cites to no facts other than the policy itself to establish that "deferring 100% to the School Police ... was the ‘moving force’ resulting in the deprivation of [her] right to be free from sexual abuse." (DE 86). But it is not enough to merely identify the policy at issue. See id. ("[I]t is not enough to identify conduct properly attributable to the municipality."). Doe must also "show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Hill v. Cundiff , 797 F.3d 948, 977 (11th Cir. 2015) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown , 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ).
Thus, even if Doe was correct in her characterization of the policy, she fails to identify evidence that establishes that 1) the School Board had "the requisite degree of culpability, i.e., that the municipal action [of implementing or enforcing a policy of complete deferral to school police] was taken with deliberate indifference to its known or obvious consequences", 233 F.3d at 1375–76, and 2 ) the deprivation of her right to be free from sexual abuse is "a plainly obvious consequence" of that policy. Hill , 797 F.3d at 977 ("A court must carefully test the link between the policymaker's inadequate decision and the particular injury alleged. The evidence must show the deprivation of the constitutional right is a plainly obvious consequence of the municipal action.") (internal quotations and citations omitted). Because there is no such evidence, the Court concludes that, even if Doe's characterization of the School Board's policy was accurate, no reasonable jury could conclude that the School Board was deliberately indifferent in implementing that policy, or that the policy had the known or obvious consequences Doe claims. See e.g., id. at 978. ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality.... While the Board's policies may have made a violation of Doe's rights more likely ... that alone does not give rise to an inference that the policies produced a specific constitutional allegation.") (internal quotations omitted). Accordingly, the Court GRANTS the School Board's motion for summary judgment on Doe's claim for a policy, practice, and custom causing constitutional harm.
C. Section 1983 Claim – Deficient Training and Supervisory Practices (Count III)
In this case, Doe also brings a claim under 42 U.S.C. § 1983 for the School Board's alleged failure to "adequately train and supervise its agents and employees about the risks of sexual abuse and harassment of students under [the School Board's] care." (DE 32). Doe states in her response to the School Board's motion for summary judgment that she "does not contest the School Board's motion regarding her § 1983 claim for deficient training and supervisory practices (Count III)." (DE 86). Accordingly, the Court GRANTS the School Board's motion for summary judgment on Doe's claim for deficient training and supervisory practices brought under Section 1983.
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS AND ADJUDGES that Defendant's motion for summary judgment (DE 61-63) is DENIED IN PART AND GRANTED IN PART .
DONE AND ORDERED in chambers in Miami, Florida, this 1st day of July, 2019.