Opinion
No. CV-07-686-HU.
June 25, 2009
Peggy S. Foraker, Attorney at Law, Portland, Oregon, Attorney for Plaintiff.
J. Channing Bennett, GARRETT HEMANN ROBERTSON P.C., Salem, Oregon, Attorney for Defendants.
SUPPLEMENTAL FINDINGS RECOMMENDATION
This case involves claims by plaintiff GC, an incapacitated minor who is represented through her duly appointed conservator Kenneth Counts, against defendants North Clackamas School District ("the District"), District Superintendent Ron Naso, Principal Jan Miner, and special education teacher Angela Tucker.
Plaintiff generally contends that following an alleged sexual assault or rape by a male developmentally disabled student against a female developmentally disabled student in the fall of 2004, the District failed to take adequate measures to prevent an alleged subsequent assault or assaults by the same male developmentally disabled student against plaintiff in the spring of 2005. Plaintiff brings a claim of negligence against the District, a claim under Title IX against the District and all three individual defendants, and claims under 42 U.S.C. § 1983 against the District, Naso, and Miner.
Defendants moved for summary judgment on the Tile IX and section 1983 claims. In a February 5, 2009 Findings Recommendation (dkt #49), I recommended that defendants' motion be granted as to the individual defendants on the Title IX claim and denied as to defendant District on the Title IX claim. I deferred ruling on the section 1983 claims because of insufficient briefing on the merits of those claims.
At my direction, the parties filed supplemental briefing on the section 1983 claims, specifically addressing six questions posed to the parties in the February 5, 2009 Findings Recommendation. For the reasons explained below, I recommend that defendants' summary judgment motion as to the section 1983 claims be granted. The facts of the case are thoroughly detailed in the February 5, 2009 Findings Recommendation and I do not repeat them here.
Plaintiff brings two section 1983 claims, one against the District and the other against Naso and Miner. Plaintiff contends that the District has a policy, practice, or custom of failing to remove sexually abusive perpetrators from its special needs education program and that as a result of this policy, practice, or custom, the District's policymakers ignored requests to remedy the sexually harassing environment by removing AY from the high school, and by refusing to remedy the sexually harassing environment, the District affirmatively deprived plaintiff of, or acted with deliberate indifference to the risk of deprivation to, her constitutional liberty and property interests in a public education, and her right to the equal protection of the law. Compl. at ¶¶ 23-28.
Plaintiff contends that Naso and Miner, knowing that KW had been sexually assaulted by AY in the fall of 2004, and knowing that plaintiff observed some of that attack, nonetheless failed to remove AY from the high school and thus, Naso and Miner affirmatively deprived plaintiff of, or acted with deliberate indifference to the risk of deprivation to, her constitutional liberty and property interests in public education, and her right to the equal protection of the law. Id. at ¶¶ 30-32.
In response to my question in the February 5, 2009 Findings Recommendation regarding what legal authority exists for plaintiff's claims asserting a substantive liberty or property interest in a public education, Feb. 5, 2009 F R at p. 32, plaintiff cites no authority supporting that claim. Instead, plaintiff asserts that her claim is one for substantive due process based on her constitutional right to bodily integrity. Based on the cases cited in the February 5, 2009 Findings Recommendation on this issue, I recommend that defendants' motion as to plaintiff's section 1983 claims against the District, Naso, and Miner, be granted to the extent the section 1983 claims are based on plaintiff's theory of a constitutional interest in a public education.
I. Due Process Claim — Bodily Integrity
The Ninth Circuit recognizes a public school student's "constitutional right to be free from state-imposed violations of bodily integrity." Plumeau v. Yamhill County Sch. Dist. #40, 130 F.3d 432, 438 (9th Cir. 1997) ("a student's liberty interest in bodily integrity logically encompasses" "the right to be free from sexual abuse by school employees"). I find no Ninth Circuit cases, and plaintiff cites none, where the court has recognized a substantive due process claim based on a violation of the right to bodily integrity in a peer-to-peer harassment context. Magistrate Judge Stewart recently noted the lack of such Ninth Circuit authority. Morgan v. Bend-La Pine Sch. Dist., No. CV-07-173-ST, 2009 WL 312423, at *10 (D. Or. Feb. 6, 2009) ("No Ninth Circuit case has allowed a substantive due process claim premised on a violation of the right to bodily integrity arising out of the failure of teachers or a school district to detect and prevent student-to-student sexual harassment in a public school.").
However, like Judge Stewart did in Morgan, I assume the Ninth Circuit would recognize the right. Nonetheless, I recommend that summary judgment be granted to defendants on plaintiff's newly asserted "bodily integrity" substantive due process claim.
While plaintiff may have changed the constitutional right upon which she asserts her due process claim, it appears that the basis of the claim is still a failure by the District to protect her from AY. See Pltf's Am. Resp. Mem. on Section 1983 Claims at p. 3 ("Plaintiff has alleged that [] defendants failed to protect her from the sexual abuse inflicted on her in the Spring of 2005 and the rape in June 2005."). Additionally, she articulates for the first time in her supplemental memorandum on the section 1983 claims, that defendants violated her substantive due process rights by their failure to train employees regarding student sex abusers.
As originally articulated in her Complaint, plaintiff's primary argument, regardless of whether the right at issue is a liberty or property right in public education, or a substantive due process right to bodily integrity, is that the District has a policy, practice, or custom of failing to remove sexually abusive perpetrators from its special needs education program. Before addressing the lack of evidence in the record on this issue, I note that generally, "a state is not liable for failing to protect individuals from harm by third parties[.]" Morgan, 2009 WL 312423, at *10 (citing, inter alia, DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195 (1989)). However, there are two recognized exceptions to this rule. Id.
The "special relationship" exception applies where a state actor abuses a special state-created relationship with an individual, such as in the case of custody or involuntary hospitalization. Morgan v. Gonzales, 495 F.3d 1084, 1093-94 (9th Cir. 2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1290, 170 L. Ed. 2d 71 (2008); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992), cert. denied, 508 U.S. 951, 113 S. Ct. 2442, 124 L. Ed. 2d 660 (1993). The second exception is the "danger creation exception," under which "state actors may be held liable where they affirmatively place an individual in danger by acting with deliberate indifference to a known or obvious danger in subjecting plaintiff to it." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir. 2006) ("Ridgefield"), denying pet. for rehr'g en banc, 440 F.3d 1091 (2006) (Internal citations quotations and brackets omitted); see also Huffman v. County of Los Angeles, 147 F.3d 1054, 1059 (9th Cir. 1998), cert. denied, 526 U.S. 1038, 119 S. Ct. 1333, 143 L. Ed. 2d 498 (1999). The second exception applies where the state creates a "danger that the plaintiff would not have otherwise faced, as when the police reveal an accuser's name after assuring her that she would be warned before any further action was taken." Shanks v. Dressel, 540 F.3d 1082, 1088 n. 5 (9th Cir. 2008) citing Ridgefield, 439 F.3d at 1061.Morgan, 2009 WL 312423, at *10.
Plaintiff fails to identify which of the two exceptions she contends applies in this case. However, another district court within the Ninth Circuit has determined, under similar facts, that the "special relationship" exception does not apply here.Schroeder v. San Diego Unified Sch. Dist., No. 07cv1266-IEG(RBB), 2007 WL 4225449, at *4 (S.D. Cal. Nov. 26, 2007) (with no allegation that defendants required the developmentally disabled plaintiff to attend the school at which she was allegedly sexually harassed and assaulted by a peer, no allegation that defendants took custody of the plaintiff to the exclusion of her mother's parental rights, and no allegation that defendants restricted the plaintiff's personal liberty in a manner similar to incarceration or institutionalization, plaintiff failed to allege a special relationship supporting the imposition of liability under the Due Process Clause).
Under the "danger creation exception," plaintiff must prove that the "defendant effectively prevented the plaintiff from protecting [her]self or prevented access to outside sources of help." Morgan, 2009 WL 312423, at *11. "The defendant must affirmatively place an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid." Id. (internal quotation and brackets omitted). Plaintiff must show that "state action create[d] or expose[d] [her] to a danger which [she] would not have otherwise faced." Johnson v. City of Seattle, 474 F.3d 634, 639 (9th Cir. 2007) (internal quotation omitted). She must also allege that the danger to which defendants allegedly exposed her was "known or obvious" and that defendants "acted with deliberate indifference to it." Ridgefield, 439 F.3d at 1064.
While plaintiff's section 1983 substantive due process claim is generally described as a failure to protect plaintiff from harm by AY, plaintiff specifically contends first, that defendants fail to remove sexually abusive perpetrators from special education classrooms, and that defendants fail to train employees in "dealing with sex abuse issues." Plaintiff does not articulate how a failure to act to remove allegedly abusive students or how a failure to train can satisfy the affirmative act required in a "danger creation exception" case.
In a similar case, the parents of an autistic student brought claims under Title IX and the Fourteenth Amendment when their daughter, a special education student, was allegedly sexually assaulted on the school bus. Staehling v. Metropolitan Gov't of Nashville Davidson County, No. 3:07-0797, 2008 WL 4279839 (M. D. Tenn. Sept. 12, 2008). Citing DeShaney, the Staehling court noted the "general proposition" that "governmental entities are not liable for injuries sustained by private citizens as a result of the citizen's own or another private citizen's conduct." Id. at *5. The court discussed the two exceptions, and explained the requirements for the state-created danger exception. Id. at *5-6.
The first requirement, similar to what the Ninth Circuit has articulated, includes an affirmative act by the state, which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party. Id. at *6. The court held that the plaintiff failed to satisfy the requirement.Id. at *7. The court explained that the
[p]laintiffs fail to point to an affirmative act which created or increased the risk of harm to Plaintiff. Instead, they point to alleged failures of Defendant, such as placing special needs students together on a bus without monitors, failing to sufficiently train bus drivers and the bus driver failing to adequately monitor what was going on behind her. These allegations do not meet the criteria for the state-created danger exception to DeShaney.Id. at *7. The court concluded its discussion of the plaintiff's substantive due process claim by remarking that "the situation presented is regrettable." Id. at *8. Frankly, although events such as those alleged in this case are beyond regrettable, the issue is whether they are actionable. The Staehling court explained that
[p]laintiffs have pointed to nothing which suggests that any affirmative act of the school led to the assault. Instead, it arose as a result of another child's actions. While Plaintiffs point to what may be characterized as derelictions on the part of the school, as was the case in DeShaney, the most that can be said of Metro is that they stood by and did nothing even though prudence may have dictated that they do more.Id.
The instant case is indistinguishable from Staehling. Here, plaintiff alleges that defendants' failure to implement certain consequences for AY's bad acts and failure to train created the failure to protect her from sexual assault. As in Staehling, plaintiff here fails to point to an affirmative act by the District which led to the alleged assaults by AY. Plaintiff's substantive due process claim should be dismissed for this reason alone.
Even if it could be argued that defendants affirmatively placed plaintiff in a position of danger by failing to train and failing to implement consequences for AY's bad acts, plaintiff's claim still fails. Plaintiff fails to establish a question of fact as to the District's alleged policy, practice, or custom of failing to remove sexually abusive perpetrators from the special education program. The only evidence in the record concerns AY, a single student. Plaintiff presents no evidence of any other alleged sexually abusive perpetrator that the District failed to remove. There is no official policy. And, a single incident is insufficient to establish a longstanding practice or custom.E.g., Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (liability "may not be predicated on isolated or sporadic incidents; it must be founded upon practices of insufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy."). Moreover, while the single act of a final policymaker may establish municipal policy for the purposes of a section 1983 claim, Lassiter v. City of Bremerton, 556 F.3d 1049, 1055 (9th Cir. 2009), as discussed below, Naso and Miner are not final policymakers for the district for the claims raised by plaintiff here.
As for the training claim, plaintiff contends that the District was on notice, beginning in 2001, that "it had a problem in dealing with sex abuse issues." Pltf's Am. Resp. Mem. on Section 1983 Claims at p. 5. Plaintiff suggests that as a result of this notice, the District knew that its failure to train its employees regarding sexually abusive students created a known risk to plaintiff's constitutional rights. As support, plaintiff cites to a 2001 letter from the District's Risk Manager Gary Richter to the Great American Insurance Company. Pltf's Exh. 4.
This letter does not support plaintiff's assertion that there was a generalized District problem in "dealing with sex abuse issues." The letter confirmed the insurance company's request that the District clarify what actions have been taken "since this event." Id. It refers to "this occurrence and related police investigation," and notes that at the time, the District determined that "there were numerous problems and potential problems in the way in which a matter like this could be handled." Id. The letter reveals no other information about the "event" or the "occurrence."
Richter explained that the District was currently in the process of reviewing its "activities regarding any forms of, or reports on child abuse." Id. He noted that a training program for administrators and key school personnel was being developed. Id. The letter indicates that the specific problem concerned handling of complaints and child abuse reports. The letter does not show that the "occurrence" was a peer-to-peer sexual harassment or assault incident and does not show any kind of notice to the District of a recurring problem with peer-to-peer conduct. The letter is too general and not clearly related to sex abuse as opposed to the broader issue of child abuse.
In a 2009 case, the Eighth Circuit explained that to survive a summary judgment motion by a defendant school district on a claim that it failed to receive, investigate, and act upon complaints of unconstitutional conduct, or that it failed to train its employees to prevent or terminate unconstitutional conduct, the plaintiff must present evidence that "(1) there was a continuing, widespread, persistent pattern of unconstitutional misconduct, (2) the school's policymaking officials were deliberately indifferent to or tacitly authorized such conduct after gaining knowledge of such conduct, and (3) [the plaintiff] was injured by acts pursuant to the school's custom." Plamp v. Mitchell Sch. Dist. No. 17-2, No. 08-2700, ___ F.3d. ___, 2009 WL 1288612, at *7 (8th Cir. May 12, 2009) (internal quotations omitted).
Here, plaintiff fails to cite to any evidence that there was a continuing, widespread, persistent pattern of unconstitutional misconduct. As noted above, plaintiff presents no evidence of peer-to-peer incidents, or even allegations, concerning any student other than AY. Plaintiff presents no evidence that the District's alleged unconstitutional conduct of failing to protect a student was widespread. Plaintiff presents no evidence that the District had a custom or practice of ignoring reports about problems "in the District's treatment of sex abuse issues leading to a lack of protection of the students[.]" Pltf's Am. Resp. Mem. on Section 1983 Claims at p. 7. The only evidence plaintiff presents is the alleged failure by the District to properly respond to the KW incident by failing to more strenuously discipline AY. This is not evidence of a continuing, widespread, persistent pattern.
Plaintiff further fails to show that the 2001 letter to the insurer put the District on notice that it had a peer-on-peer sexual harassment or assault problem that it was failing to address. Additionally, while plaintiff argues that Superintendent Naso was a final policymaker for the District in regard to its training of employees and in regard to actions taken in response to student misconduct, plaintiff cites no evidence or law to support this position.
Whether a particular individual has final policymaking authority for purposes of municipal liability in a section 1983 claim, is a legal question dependent upon state law. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Under Oregon Revised Statute § (O.R.S.) 332.072, a "district school board is authorized to transact all business coming within the jurisdiction of the district. . . . [;] district school boards have control of the district schools and are responsible for educating children residing in the district." Under O.R.S. 339.240(2), the district school board is required to "adopt and attempt to give the widest possible distribution of copies of reasonable written rules regarding pupil conduct, discipline and rights and procedures pertaining thereto." The district school board is also required to enforce consistently and fairly its written rules regarding pupil conduct, discipline and rights. O.R.S. 339.240(3).
Although O.R.S. 339.240(3) states that it does not apply to a pupil who is eligible for special education, plaintiff makes no argument that her status as a special education student, or AY's status as such, impacts the determination of who, under state law, is a final policymaker for purposes of her substantive due process section 1983 claim.
The district school board is expressly charged with developing policies on managing students who threaten violence or harm in public schools. O.R.S. 339.250(4)(b). And, under Oregon law, the district school board is expressly charged with adopting policies on the reporting of child abuse. O.R.S. 339.372.
While there is no statute that expressly states that the final policymaker for a school district under Oregon law is the school board, the statutes cited above show that for the claim raised by plaintiff in this case, the school board, not the superintendent or school principal, is the final policymaker. See also Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377, 381-82 (5th Cir.) (where state law gives school board the authority to make policy, and the superintendent the authority to administer, the school board, not the superintendent, is the final policymaker), cert. denied, 128 S. Ct. 255 (2007); Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468-69 (7th Cir. 2001) (school superintendent and principal were not final policymakers for school district under Wisconsin law); Plumeau v. Sch. Dist. No. #40, County of Yamhill, 907 F. Supp. 1423, 1442 (D. Or. 1995) (school principal had no authority to set district policies on any subject), aff'd, 130 F.3d 432.
I recommend that summary judgment be granted to the District on plaintiff's substantive due process "bodily integrity" claim.
As to Naso and Miner, plaintiff's claim is that with knowledge that AY sexually assaulted KW, and with knowledge that plaintiff observed some of that attack, Naso's and Miner's failure to remove AY from the school constituted deliberate indifference to the risk of deprivation to plaintiff's right to bodily integrity. Just as with the claim against the District, plaintiff's "failure to act" claim cannot be brought under the "danger-creation exception" to DeShaney which requires some kind of affirmative act.
Alternatively, plaintiff fails to show that these particular individuals were responsible for the decision to retain AY in the school. The record establishes that school psychologist Panko met with AY's foster parent and caseworker and discussed moving him to another school. Panko Tr. 24-25. Panko states that more corroborating evidence of the KW incident was required before AY could be moved to a more restrictive environment, consistent with special education requirements. Plaintiff points to no evidence in the record indicating that either Miner or Naso was involved in the decision to allow AY to stay in the same school as plaintiff, either by participating in the decision or directing it. Because they cannot be held liable in a section 1983 action based on a respondeat superior theory of liability, summary judgment should be granted to Naso and Miner on plaintiff's substantive due process claim. E.g., Humphries v. County of Los Angeles, 554 F.3d 1170, 1202 (9th Cir. 2009) (under section 1983, supervisor liable only for his own acts by participating in or directing the alleged violations).
II. Equal Protection Claim
As originally pleaded in her Complaint, the basis for plaintiff's equal protection claim was unclear. In the February 5, 2009 Findings Recommendation, I asked plaintiff to clarify the basis for the claim and to identify whether it was based on gender, disability, or some other characteristic. In her supplemental response memorandum, plaintiff identifies the claim as based on gender. Pltf's Am. Resp. Mem. on Section 1983 Claims at p. 20.
Plaintiff argues that defendants' failures to act were motivated by a bias against women, as evidenced by the fact that they allowed the sexual abuse and rape of plaintiff to occur, and by the fact that they did not believe KW and plaintiff were telling the truth, but always believed AY. The record does not support plaintiff's assertions.
To state a section 1983 claim for violation of the Equal Protection Clause, plaintiff must show that defendants acted with an intent or purpose to discriminate against her based on her membership in a protected class. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Gender is a protected class. Oona R.-S.-by Kate S. v. McCaffrey, 143 F.3d 473, 476 (9th Cir. 1998) ("The Equal Protection Clause creates the right to be free from any purposeful sex discrimination by state actors.").
Plaintiff must also show that she was treated differently from similarly situated students. E.g., Estate of Macias v. Ihde, 219 F.3d 1018, 1028 (9th Cir. 2000) (equal protection violation occurs when the government treats someone differently from another who is similarly situated). In this case, that means showing that defendants treated plaintiff differently from similarly situated male students. See Rohren v. Centennial Pub. Sch. Dist. 67-R, No. 4:07CV3150, 2008 WL 939177, at *4 (D. Neb. Apr. 4, 2008) (in gender-based equal protection claim, plaintiff needed to show she was treated differently than similarly situated males); Malcom v. Seipel, No. 05-3238, 2008 WL 818342, at *15 (C. D. Ill. Mar. 20, 2008) (to sustain equal protection claim based on gender, plaintiff required to identify evidence of similarly situated males who were treated more favorably).
As with her substantive due process claim against the District, to sustain her equal protection claim against the District, plaintiff must show that a District employee was acting pursuant to an expressly adopted official policy, that the employee was acting pursuant to a longstanding practice or custom, or that the employee was a final policymaker. E.g., Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); see also Fitzgerald v. Barnstable Sch. Comee, 129 S. Ct. 788, 797 (2009) (a section 1983 plaintiff alleging a violation of the Equal Protection Clause by a school district must show that the harassment was the result of district policy, custom, or practice).
Plaintiff proffers no evidence of an express policy of gender discrimination in the handling of peer-to-peer sexual harassment or abuse. Plaintiff proffers no evidence of a longstanding District custom or practice of gender discrimination in the handling of peer-to-peer sexual harassment or abuse. And, plaintiff, for the reasons above, fails to show that Naso or Miner is a final policymaker. I recommend that summary judgment be granted to the District on plaintiff's equal protection claim.
The only evidence plaintiff offers in support of her argument that Naso and Miner violated her equal protection rights by treating her differently than similarly situated males, is to state that Naso and Miner did not believe plaintiff or KW, who are both girls, but believed a male victim of sexual abuse by AY. Pltf's Am. Resp. Mem. on Section 1983 Claims at p. 20. Plaintiff cites to no specific exhibit in support, but my review of the record suggests plaintiff relies on Defendants' Exhibit 36, a February 8, 2006 letter from Panko to Clackamas County Circuit Judge Deanne L. Darling. There, Panko requests permission from Judge Darling to move AY to a different school district based on the history of "serious allegations" made against AY the prior year while at Clackamas High School, and based on the fact that AY was now living in a group home in a new school district after having been "removed from his foster home recently due to some concerns about sexual behavior with a younger child living in the home." Defts' Exh. 36.
This letter does not indicate the gender of the "younger child." The letter does not provide any more information about the nature of the "sexual behavior." Notably, the "younger child" was not a student at the high school and thus, was not similarly situated to plaintiff. Also notably, the letter does not support that Naso or Miner formed any belief whatsoever about what occurred between AY and this "younger child." The letter requests only that Judge Darling approve a change to AY's school placement now that AY was in a different school district and because of AY's prior "serious allegations" against him. Plaintiff fails to create an issue of fact that Naso or Miner treated female victims of alleged sexual abuse by AY any differently than male victims. Finally, the mere fact that plaintiff, a female, was allegedly assaulted and then allegedly raped by AY, a male, after the alleged incident with KW, does not, by itself, establish that Naso and Miner acted, or failed to act, with the purposeful intent of discriminating against women. I recommend that summary judgment be Naso and Miner on plaintiff's equal protection claim as to Naso and Miner.
Finally, because I recommend granting summary judgment to defendants on the merits of the section 1983 claims, I do not consider defendants' qualified immunity argument.
CONCLUSION
I recommend that defendants' motion for summary judgment (#24) be granted as to the section 1983 claims.
SCHEDULING ORDER
The above Supplemental Findings and Recommendation, along with the February 5, 2009 Findings Recommendation, will be referred to a United States District Judge for review. Objections, if any, are due July 10, 2009. If no objections are filed, review of the February 5, 2009 Findings and Recommendation, and the Supplemental Findings Recommendation, will go under advisement on that date.
If objections are filed, a response to the objections is due July 24, 2009, and the review of the February 5, 2009 Findings and Recommendation, and the Supplemental Findings Recommendation, will go under advisement on that date.
IT IS SO ORDERED.