Jane Doe, et al v. Merrill Community School Distr, et al

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. John M. Rogers, Deborah L. Cook (AUTHORING), David W. McKeague, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0033p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

CAROLE PAHSSEN, Next Friend of JANE DOE, X
a minor,
Plaintiff-Appellant, -No. 10-1028
>
v.
,
MERRILL COMMUNITY SCHOOL DISTRICT;
BRECKENRIDGE COMMUNITY SCHOOLS; JEFF
JENNETTE; SHEILA PILMORE; SALLY
MACLENNAN,
Defendants-Appellees. N
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 08-11539—Thomas L. Ludington, District Judge.
Argued: October 13, 2011
Decided and Filed: February 3, 2012
Before: ROGERS, COOK, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Victor Joseph Mastromarco, Jr., THE MASTROMARCO FIRM, Saginaw,
Michigan, for Appellant. Roy H. Henley, THRUN LAW FIRM, P.C., East Lansing,
Michigan, Gregory W. Mair, O’NEILL, WALLACE & DOYLE, Saginaw, Michigan,
for Appellees. Lisa J. Stark, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Amicus Curiae. ON BRIEF: Manda L. Westervelt, THE
MASTROMARCO FIRM, Saginaw, Michigan, for Appellant. Roy H. Henley, THRUN
LAW FIRM, P.C., East Lansing, Michigan, Gregory W. Mair, O’NEILL, WALLACE
& DOYLE, Saginaw, Michigan, John A. Chasnis, CHASNIS, DOGGER & GRIERSON,
Saginaw, Michigan, for Appellees. Lisa J. Stark, Mark L. Gross, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae.

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_________________
OPINION
_________________
COOK, Circuit Judge. Plaintiff-Appellant Carole Pahssen (“Appellant”), as next
friend and mother of Jane Doe, sued defendants Breckenridge Community Schools
(“Breckenridge”), Breckenridge Superintendent Jeff Jennette (“Superintendent
Jennette”), Breckenridge Middle School Principal Sheila Pilmore (“Principal Pilmore”)
(collectively “the Breckenridge Defendants”), Merrill Community School District
(“Merrill”), and Sally MacLennan for relief on claims stemming from sexual harassment
and assault that Jane Doe allegedly experienced while attending Merrill. In her amended
complaint, Appellant alleged violations of Title IX of the Education Amendments of
1972 (“Title IX”) against Merrill and Breckenridge, violations of 42 U.S.C. § 1983
against Merrill and the Breckenridge Defendants, and violations of 42 U.S.C. § 1985
against MacLennan and the Breckenridge Defendants. The district court granted
summary judgment to the defendants on all claims. We affirm.
I.
During the fall of 2007, Jane Doe and John Doe1 were students in Merrill Middle
School and Merrill High School, respectively. The two schools’ classrooms occupy
different wings of the same building in Saginaw County, Michigan. At the beginning
of the 2007–2008 school year, John was a ninth grade, Individualized Education
Program (“IEP”), special education student. At this time, Jane was in eighth grade and
believed that she was John’s girlfriend.
Appellant alleges that John sexually harassed Jane on three separate occasions
during the first few weeks of the semester. In the first incident, John shoved Jane into
a locker. In her deposition, Jane testified that she believed John did this because he saw
her talking to another boy and “got jealous.” Megan McMahan, Jane’s science teacher

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record.

Under a protective order issued by the district court, the minors’ names were stricken from the

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and basketball coach, witnessed this incident. In the second incident, John allegedly told
Jane that “if she wanted to hang out with him anymore, she would have to” perform oral
sex on him.
Last, Appellant asserts that John made “obscene sexual gestures” toward Jane
during a school basketball game in which Jane was playing, in plain view of a crowd that
included students, teachers, and school administrators. After the game, Jane’s stepfather
Russ Pahssen approached John to warn him to stay away from Jane; John responded by
assuming an aggressive posture and using profane language toward Mr. Pahssen.
Parents and school staff then stepped in and defused the situation.
After the basketball game, Mr. Pahssen wrote a letter to Merrill administrators
describing the game’s events and informing them of John’s request for oral sex. The
letter also mentioned that when Mr. Pahssen asked Jane about John’s gestures during the
basketball game, “she just replied that he was a teenage boy and that [Mr. Pahssen]
wouldn’t understand.” Mr. Pahssen’s letter concluded with a warning: “I believe [John]
is a volcano waiting to erupt and when he does someone will be hurt, student or staff.”
In response, Merrill convened an IEP team on September 27, 2007. Merrill
Middle School Principal Christine Garno (“Principal Garno”) and McMahan, among
others, attended the meeting. The IEP team created a plan requiring John to be under
constant adult supervision while he was at school for the next 30 days. The plan
specified that the team would reconvene to review the plan and discuss possible
adjustments “[a]s needed.” Appellant does not allege that John committed any acts of
sexual harassment during this 30-day period or the seven weeks after the supervision
period expired.
On December 20, 2007, shortly after school had ended for the day, John sexually
assaulted Jane on Merrill school grounds. On January 16, 2008, Merrill Superintendent
John Searles, citing the assault, recommended that Merrill expel John. The Merrill
School Board approved the expulsion at a meeting on January 30, 2008.

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While these were the only incidents cited by Appellant that involve Jane, John
had a lengthy history of disciplinary problems, including several allegations of sexual
harassment and assault, prior to his contact with Jane. John attended Merrill Middle
School during the first few months of the 2004–2005 school year, Breckenridge Middle
School from February 2005 until the end of the 2005–2006 school year, and Merrill
Middle School again starting in August 2006. During his time at Merrill in 2004–2005,
John was in trouble so often that then-Merrill Middle School Principal Michael Thayer
said “there were few school days where [John] did not receive some type of disciplinary
measures.” Appellant does not, however, allege that John committed any acts of sexual
harassment during this time.
John’s behavior problems continued after he transferred to Breckenridge in
February 2005. Principal Pilmore wrote to the Breckenridge Police Department on May
5, 2006, describing a number of infractions involving sexual harassment by John. When
John left Breckenridge in May 2006, he was on suspension “pending board action.” A
letter from Breckenridge Schools Superintendent Jeff Jennette to MacLennan, dated May
2, 2006, reads:
This is a letter to inform you that Breckenridge Schools will not require
your son, [John], to attend Breckenridge Schools in the future. You are
free to entertain other educational opportunities for [John], and I wish
you and him the best of luck in finding a program that is right for him.
The administration has been notified of this, and upon receiving that
“records request” from his new district, his records will be sent to his
new district with only the information that the new district requires.
Citing this letter and portions of Superintendent Jennette’s deposition testimony,
Appellant asserts that Breckenridge agreed not to expel John and to “purge” disciplinary
records from his file in exchange for MacLennan’s withdrawing him from the district.
In August 2006, John re-enrolled at Merrill. In October 2006, after an incident
where John attacked a group of students who were calling him “rapist,” then-Middle
School Principal Gary Smith wrote MacLennan to inform her that John was suspended
for the remainder of the semester. The letter stated:

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[B]efore [John] can return to Merrill Community Schools as a student,
there must be in writing documents that establish . . . progress has been
made . . . in addressing his oppositional behaviors with adults and peers,
his lack of respecting the rights of other students and staff members,
anger management, and self-control issues.
John did not return to Merrill Middle School for the remainder of the 2006–2007 school
year. Appellant also notes that police arrested John twice for acts of sexual assault while
he was enrolled at Merrill and Breckenridge. The record does not suggest, however, that
either arrest led to a conviction or juvenile adjudication. Merrill allowed John to reenroll at Merrill High School as a ninth grader at the beginning of the 2007–2008 school
year. It was during this period of his re-enrollment that the incidents involving Jane Doe
occurred.
On April 10, 2008, Plaintiff-Appellant filed a complaint against Merrill and
various Merrill administrators and officials, alleging violations of Title IX and 42 U.S.C.
§ 1983. The Merrill defendants moved the district court to dismiss the complaint or, in
the alternative, grant summary judgment. The district court granted the motion in part
and denied it in part, dismissing all claims against the individual defendants and the
§ 1983 claims against all parties, but denying the motion with respect to the Title IX
claim against Merrill itself. The court then granted Appellant leave to file an amended
complaint joining the Breckenridge Defendants and MacLennan. Appellant’s amended
complaint alleged violations of Title IX against Merrill and Breckenridge, § 1983 against
Merrill and the Breckenridge Defendants, and § 1985 against the Breckenridge
Defendants and MacLennan. Merrill then renewed its motion for summary judgment,
and MacLennan and the Breckenridge Defendants filed motions to dismiss or, in the
alternative, for summary judgment. The district court granted summary judgment in
favor of the defendants on all counts. This appeal followed.
II.
In her opening brief, Appellant argues that the district court erred in denying her
Title IX claim against Merrill, her Title IX claim against Breckenridge, and her § 1985
claim against MacLennan and the Breckenridge Defendants. With respect to her § 1983

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claims, Appellant’s opening brief simply states that the district court erred in dismissing
her “§ 1983 claim,” without referring to any specific parties or counts of her amended
complaint. On July 23, 2010, the United States, through the Department of Justice Civil
Rights Division (hereinafter, “the government”), filed an amicus curiae brief in support
of Appellant. The government’s brief urges this Court to reverse the district court’s
denial of the Title IX claim against Merrill, but does not address any of Appellant’s other
claims.
We review a district court’s grant of summary judgment de novo. Ciminillo v.
Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is proper “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). The court must draw all
reasonable inferences from the record in the light most favorable to the nonmoving
party, and the court may only grant summary judgment “[w]here the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citation
omitted). Appellate courts reviewing summary judgment may affirm on any grounds
supported by the record. E.g., Babcock & Wilcox Co. v. Arkwright-Boston Mfg. Mut.
Ins. Co., 53 F.3d 762, 767 (6th Cir. 1995).
A.
In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the
Supreme Court held that “in certain limited circumstances,” peer-to-peer sexual
harassment supports a Title IX civil damages claim against a funding recipient. Id. at
643. The school district is only liable for its own misconduct, since Title IX requires
that “[t]he recipient itself . . . ‘exclude persons from participation in . . . deny persons the
benefits of, or . . . subject persons to discrimination under’ its ‘programs or activities.’”
Id. at 640-41 (alterations omitted). Davis limits liability “to cases having a systemic
effect on educational programs or activities.” Id. at 653. The Davis opinion established
three prima facie elements for a Title IX claim based on student-to-student harassment:

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(1) the sexual harassment was so severe, pervasive, and objectively
offensive that it could be said to deprive the plaintiff of access to the
educational opportunities or benefits provided by the school,
(2) the funding recipient had actual knowledge of the sexual harassment,
and
(3) the funding recipient was deliberately indifferent to the harassment.
Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999) (summarizing Davis’s holding). The
deliberate indifference standard requires that the harassment “take place in a context
subject to the school district’s control” in circumstances “wherein the [school district]
exercises substantial control over both the harasser and the context in which the known
harassment occurs.” Davis, 526 U.S. at 645. The Court further cautioned that “courts
should refrain from second-guessing the disciplinary decisions made by school
administrators” and that victims of peer harassment do not “have a Title IX right to make
particular remedial demands.” Id. at 648.
Appellant asserts Title IX claims against both Merrill and Breckenridge.
1.
In support of her claim against Merrill, Appellant’s opening brief refers to three
incidents prior to the sexual assault where John Doe allegedly harassed Jane Doe: the
locker incident, the request for oral sex, and the gestures at the basketball game. The
district court correctly found that these three incidents, taken together, “do[] not rise to
the level of ‘severe, pervasive, and objectively offensive’ conduct.” While disturbing,
Appellant does not explain how the incidents deprived Jane of access to Merrill’s
educational resources, opportunities, or benefits. These three pre-December 2007
incidents thus fail to satisfy the first prong of the Davis test.
Appellant also urges the court to consider incidents involving third-party victims
in its analysis of whether Jane experienced severe, pervasive, and objectively offensive
harassment. Appellant states that she relies on her statement of facts to support her
claim that “the School District should have been on notice that [John] presented a sexual
threat to female students, including Jane Doe.” The facts section of Appellant’s brief

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includes a number of incidents involving victims other than Jane, including many
incidents that took place off school grounds. Citing an unpublished district court
opinion, Appellant argues that previous acts of sexual harassment need not be directed
at the Plaintiff to satisfy the first Davis requirement.
Appellant cannot, however, premise the first element of her Title IX claim on
conduct directed at third parties. Both the plain language of Title IX and controlling
case law demonstrate that an individual plaintiff generally cannot use incidents involving
third-party victims to show severe and pervasive harassment. Title IX protects students
from being “excluded from participation in” or “denied the benefits of” the accused
school. 20 U.S.C. § 1681(a) (2006). Davis established such denial of access as the sole
basis for Title IX student-to-student harassment claims. Davis, 526 U.S. at 650. While
physical deprivation of access to school resources is not required, Davis emphasized that
the victims must be “effectively denied equal access to an institution’s resources and
opportunities” in order to bring a Title IX damages claim. Id. at 651.
It follows that a plaintiff bringing a Title IX suit as an individual and not as a
member of a class cannot meet the Davis requirements unless she can show how the
accused school “deprive[d] the plaintiff of access to the educational opportunities or
benefits provided by the school.” Soper, 195 F.3d at 854 (citing Davis, 119 S.Ct. at
1666-71) (emphasis added). Incidents involving third-party victims lack relevance
unless the plaintiff can show that the incidents deprived her of such access. This accords
with the general principle that plaintiffs must assert their own legal rights and interests,
and cannot rest a claim to relief on the rights or interests of third parties. See, e.g.,
Warth v. Seldin, 422 U.S. 490, 499 (1975).
Here, Appellant appears as an individual. She does not explain how the incidents
involving other students or incidents that occurred off Merrill grounds denied Jane
access to Merrill’s educational opportunities or benefits. Appellant cannot rely on those
incidents to meet the first Davis prong.
Both Appellant and the government hedge on whether we should consider the
sexual assault itself under the first Davis element. Facing the same ambiguity, the

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district court concisely explained why, regardless of whether the assault is considered,
Appellant’s Title IX arguments against Merrill fail:
[T]he above analysis does not include consideration of the rape.
It is somewhat problematic that, despite multiple opportunities to address
the issue, neither Plaintiff nor Merrill has provided legal authority
relevant to whether the rape should be considered. Ultimately, however,
the Court need not decide the issue, because Plaintiff’s Title IX claim
cannot survive under either circumstance. As discussed above, if the
rape is not considered, Plaintiff cannot prove that she was subjected to
“severe, pervasive, and objectively offensive” sexual harassment.
On the other hand, even if the rape is considered as part of the
analysis, and Plaintiff can prove that element, she cannot prove that
Merrill’s response to the sexual harassment was “deliberately
indifferent.” Considering all of John Doe’s incidents of misbehavior of
which Merrill may have been aware and should have informed Merrill of
John Doe’s apparent propensity to engage in sexual harassment, Plaintiff
cannot prove that Merrill’s various responses were deliberately
indifferent. Indeed, Plaintiff effectively conceded that Merrill’s response
to the rape was not deliberately indifferent. While John Doe may have
engaged in more serious misconduct outside of Merrill, Merrill only had
authority to impose discipline for the locker incident, the comments
regarding a sexual act, and the sexual gestures at the basketball game.
To this end, Merrill imposed a supervision plan, and while the plan was
in effect, no further incidents occurred. Although further harm later
occurred to Plaintiff, until that point, Merrill did not have “actual
knowledge that its efforts to remediate are ineffective.” Vance, 231 F.3d
at 261. In other words, it cannot be said that Merrill’s “own deliberate
indifference effectively ‘cause[d] the discrimination.’” Davis, 526 U.S.
at 643.
We agree. Even if we consider sexual assault itself under the first part of the Davis test,
Appellant’s Title IX claim would fail because Merrill’s response to the assault was
prompt, reasonable, and not deliberately indifferent.
In arguing that Merrill displayed deliberate indifference, Appellant asserts that
“Defendants have made admissions that the plan was clearly inadequate under the
circumstances.” The only alleged “admission” cited, however, is a second-hand account
of a statement by Principal Garno from Appellant’s deposition. According to Appellant,
Principal Garno told her at some point during the supervision period: “I’d have to see

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him to be able to say if he’s been supervised or not. I’d have to see him being alone in
the halls. I’d have to see him being there. I can’t supervise somebody I don’t see.” This
statement at most indicates Garno’s awareness that she could not personally ascertain
John Doe’s whereabouts at all times during the school day. The IEP, however, was a
collaborative effort that required John to be under adult supervision while at school, not
under the personal supervision of Principal Garno. The alleged statement does not
constitute an admission of inadequacy.
Both Appellant and the government also suggest that Merrill’s failure to
reconvene the IEP team and extend the adult supervision period evinces deliberate
indifference. But Davis emphasizes that victims of peer harassment cannot make
particular remedial demands under Title IX and that “courts should refrain from
second-guessing the disciplinary decisions made by school administrators.” Davis, 526
U.S. at 648. Given the limited resources of schools and the demands placed on their
faculty, constant supervision of a particular student is precisely the type of disciplinary
decision that falls within the discretion of local school officials. Here, the IEP did not
require the team to reconvene upon the plan’s expiration, nor do the plaintiff or
government allege that any incidents occurred during the 30-day supervision period
indicating a need for continued supervision. Merrill’s failure to impose constant
supervision on John Doe after the 30-day period does not, therefore, demonstrate
deliberate indifference.
Appellant further argues that Merrill acted with deliberate indifference in its
response to the sexual assault because the school district failed to include information
regarding the sexual assault in John Doe’s student file after receiving a records request
from Midland Public Schools in February 2008. The record does not, however, support
an inference that Merrill withheld this information knowingly or deliberately; on the
contrary, the deposition testimony that Appellant cites indicates that the omission was
a clerical oversight. Indeed, even Appellant suggests only that the omission was “part
of the pattern of indifference” and “underscores that [Merrill’s] response to the rape was
clearly inadequate.” Negligence, however, does not establish deliberate indifference.

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See, e.g., Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167
(5th Cir. 2011) (citing Davis, 526 U.S. at 642, 648). Moreover, documents that
Appellant attached to her own brief at the district court demonstrate that four days after
Merrill’s Board approved John Doe’s expulsion, Merrill informed Child Protective
Services of John Doe’s expulsion due to “criminal sexual conduct.” Against this
background, the omission of information regarding the assault does not bolster
Appellant’s claim of deliberate indifference.
Finally, Appellant and the government criticize Merrill for re-enrolling John at
Merrill after his time at Breckenridge and for allowing him to return to Merrill after
serving his suspension during the 2006–2007 school year. Appellant’s brief argues that
“a reasonable inquiry . . . would have . . . revealed” this prior misconduct. Since the
deliberate indifference standard depends on actual knowledge, Appellant cannot rely on
Doe’s conduct at Breckenridge to show Merrill’s indifference.
For these reasons, Appellant fails to demonstrate that Merrill was deliberately
indifferent to John Doe’s harassment of Jane Doe. The district court correctly denied
her Title IX claim against Merrill.
2.
We likewise affirm the district court’s denial of Appellant’s Title IX claim
against Breckenridge.

Appellant bases this claim on John Doe’s harassment of

Breckenridge students, stating that the harassment was “so severe, pervasive and
objectively offensive . . . that Breckenridge should have been on notice that the student
presented a sexual threat to female students, including Jane Doe.” Appellant asserts that
Breckenridge was deliberately indifferent because a state law required Breckenridge to
expel John for “criminal sexual conduct.”
Appellant’s arguments fail. As the district court held, even assuming plaintiffs
can ground Title IX claims on third-party harassment:
Plaintiff has not provided any authority to support the extension of such
a principle to conduct that occurs at a school other than the Title IX

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plaintiff’s or off school grounds entirely. The Court concludes that such
a proposition is inconsistent with the purpose of Title IX, which is to
hold school districts liable under “circumstances wherein the recipient
exercises substantial control over both the harasser and the context in
which the known harassment occurs.” Davis, 526 U.S. at 645. When
conduct occurs at a school in another district or off school grounds
entirely, the school district has control over neither the harasser, nor the
context.
As for a supposed “duty to expel” under Michigan law, the cited statute provides,
in relevant part: “If a pupil . . . commits criminal sexual conduct in a school building or
on school grounds, the school board . . . shall expel the pupil from the school district
permanently, subject to possible reinstatement under subsection (5).” Mich. Comp.
Laws § 380.1311(2). Subsection (5) allows expelled students to apply for reinstatement
after 180 days. Even if Appellant could establish that John committed such “criminal
sexual conduct,” this state statute does not empower civil litigants to enforce it in federal
court. We therefore affirm.
B.
We also affirm the district court’s dismissal of Appellant’s due process claims
under § 1983. The Fourteenth Amendment’s Due Process Clause does not protect
citizens against the actions of private persons, with limited exceptions. One such
exception covers “certain ‘special relationships’ created or assumed by the State with
respect to particular individuals, which may give rise to such an affirmative duty and are
enforceable through the Due Process clause to provide adequate protection.” Soper v.
Hoben, 195 F.3d 845, 852 (6th Cir. 1999). Even absent a special relationship, the state
may not, through its own affirmative acts, cause or greatly increase the risk of harm to
its citizens at the hand of private actors. Sheffield v. City of Fort Thomas, Ky., 620 F.3d
596, 613 (6th Cir. 2010).

This Court restricts the application of this so-called

“state-created danger” doctrine to scenarios where the state’s actions “cause a ‘special
danger’ to the plaintiff, i.e., place him specifically at risk, as distinguished from a risk
that affects the public at large.” Id. (citing Kallstrom v. City of Columbus, 136 F.3d
1055, 1066 (6th Cir. 1998)) (internal quotation marks omitted).

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1.
Appellant urges that both the “special relationship” and “state-created danger”
exceptions apply to her claims against Merrill. We disagree. Appellant argues that
Merrill created a special relationship with Jane when Merrill “assumed the duty to
supervise John Doe and denied Jane Doe’s parents of knowledge relating to his criminal
and behavioral history so as to prevent them from taking appropriate actions
themselves.” Appellant does not, however, offer any legal authority that requires or
even permits Merrill to release information regarding John’s behavioral history to Jane’s
parents. As to the “duty to supervise” that Appellant says Merrill assumed, the IEP
requiring constant adult supervision expired nearly two months before the sexual assault.
Appellant cites neither facts in the record nor legal authority suggesting that Merrill
assumed a duty to supervise John after the 30-day supervision period expired.
Consequently, no “special relationship” existed between Merrill and Appellant at the
time of the sexual assault.
Appellant also contends that Merrill caused a state-created danger, arguing, in
essence, that by telling John to stop sexually harassing Jane, Merrill actually provoked
him to harass her more:
[V]arious notations in [John’s student] file reflect that [he] often acted
defiantly in response to being told not to do something and as such, by
advising [him] to cease all sexually harassing behaviors after the
basketball game occurrence, the Defendants herein created a danger that
[he] would act, as he had in the past, and defy their directive just for the
sake of defiance.
This argument disserves Appellant, vividly illustrating the difficult circumstances that
Merrill faced when John failed to respond to the disciplinary measures that Merrill
imposed. Indeed, if one follows Appellant’s logic regarding John’s defiant nature,
Merrill officials should have feared that expelling John would further encourage his
harassing behavior. We thus reject Appellant’s “state-created danger” theory.

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2.
Appellant abandoned her § 1983 claims against the Breckenridge Defendants on
appeal. At the district court, Appellant opposed the Breckenridge Defendants’ motion
for summary judgment or dismissal of her § 1983 claim, arguing that the Breckenridge
Defendants’ failure to fulfill their “affirmative duty to expel John Doe” introduced both
a special relationship and a state-created danger. On appeal, however, Appellant
bypasses the Breckenridge Defendants in the section of her opening brief discussing her
§ 1983 claims. The section contains a few generic references to “Defendants” and its
heading reads: “THE PLAINTIFF’S § 1983 CLAIM SHOULD NOT HAVE BEEN
DISMISSED.” As this court holds, however, such vague, generic statements fail to
preserve issues on appeal. See, e.g., Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444,
462 (6th Cir. 2003) (holding an issue waived because the “only reference to
[Appellant]’s fraudulent inducement claim is in the last sentence of his brief addressed
to this court, which requests that we ‘reverse the dismissal of Counts I-V’”).
Moreover, even a cursory reading of Appellant’s brief reveals that her § 1983
arguments pertain only to Merrill. The brief does not assert a “special relationship” or
“state-created danger” with respect to the Breckenridge Defendants. Appellant also
offered no reply to the Breckenridge Defendants’ brief, which argued that she had
abandoned her § 1983 claims against them. We deem that claim abandoned.
C.
Finally, Appellant urges us to reverse the district court’s dismissal of her
42 U.S.C. § 1985 conspiracy claims against MacLennan (John Doe’s mother) and the
Breckenridge Defendants. A § 1985(3) claim requires, among other things, that the
accused conspirators entered the conspiracy “for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the laws.”
Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (quoting United Bhd. of Carpenters
& Joiners v. Scott, 463 U.S. 825, 828–29 (1983)) (internal quotation marks omitted).
The complaint thus must “allege both a conspiracy and some class-based discriminatory
animus behind the conspirators’ action.” Newell v. Brown, 981 F.2d 880, 886 (6th Cir.

Case: 10-1028

No. 10-1028

Document: 006111204017

Filed: 02/03/2012

Pahssen v. Merrill Community Sch. Dist., et al.

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1992) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Further, “conspiracy
claims must be pled with some degree of specificity and . . . vague and conclusory
allegations unsupported by material facts will not be sufficient to state such a claim.”
Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987).
For her § 1985 claims, Appellant alleges that MacLennan and the Breckenridge
Defendants entered into an agreement to purge John Doe’s records and not to expel him
in exchange for MacLennan’s sending him to a different school. Appellant argues that
the Breckenridge Defendants acted with discriminatory animus because their “actions
were so irrational in light of [their] blatant violation of the Statute compelling expulsion
and making a record of the expulsion [that] the intent to disfavor females can be
‘presumed.’” She cites no specific facts in the record in support of her assertion of
discriminatory animus against the Breckenridge Defendants. Appellant presented the
same argument to the district court, which correctly held:
While the alleged conspirators may have made their decision to transfer
John Doe “in spite of” the potential adverse effects on female students at
Merrill, no evidence advanced suggests that they selected the course of
action “because of” an animus towards female students or female
individuals in general. While Plaintiff argues that the link should be
“presumed” because there is no rational explanation for the alleged
conspirators’ actions, such a proposition is not persuasive . . . .
Breckenridge’s desire to avoid complicated litigation is [] a rational
motivation. Accordingly, the alleged conspirators are entitled to
summary judgment on Plaintiff’s § 1985(3) claim.
Appellant’s failure to establish discriminatory animus by the Breckenridge
Defendants dooms her § 1985 claim, since a plaintiff alleging a conspiracy to deprive
her of her civil rights must establish that the alleged conspirators shared a common
discriminatory objective. See, e.g., Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416,
421 (4th Cir. 1996) (“While they need not produce direct evidence of a meeting of the
minds, Appellants must come forward with specific circumstantial evidence that each
member of the alleged conspiracy shared the same conspiratorial objective.” (citations
omitted)). Even if Appellant could establish that MacLennan acted with discriminatory

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animus, her claim would fail because she cites no facts in the record indicating that the
Breckenridge Defendants shared that animus.
III.
For these reasons, we affirm the judgment of the district court.