Doe v. Madison County School Board et al

Filing 104

MEMORANDUM OPINION. Signed by US Magistrate Judge T Michael Putnam on 7/12/2013. (KAM, )

FILED
2013 Jul-12 PM 04:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES HILL, as guardian and next friend
of BHJ, a minor,
Plaintiff,
vs.
MADISON COUNTY SCHOOL BOARD,
et al.,
Defendants.

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Case No. 5:10-cv-2593-TMP

MEMORANDUM OPINION
This cause is before the court on the motion for summary judgment filed by the
defendants on July 19, 2012. (Doc. 86). In that motion, all remaining defendants, 1 the Madison
County School Board, Ronnie J. Blair, Jeanne Dunaway, and Teresa G. Terrell, seek judgment in
their favor and dismissal of plaintiff’s various claims against them under Title IX of the
Education Amendments of 1972 (20 U.S.C. § 1681, et seq.), 42 U.S.C. § 1983, and Alabama tort
law. All remaining parties have consented to the exercise of full dispositive jurisdiction by the
undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). See Doc. 37.

I. Summary Judgment Standards
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper Aif 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 party asking for summary judgment

1

One defendant, a minor referred to herein as CJC, was dismissed without prejudice by an
Order dated January 31, 2012. (Doc. 62)
1

Aalways bears the initial responsibility of informing the district court of the basis for its motion,
and identifying those portions of >the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,= which it believes demonstrate the absence
of a genuine issue of material fact.@ Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
former Fed. R. Civ. P. 56(c)). The movant can meet this burden by presenting evidence showing
there is no dispute of material fact, or by showing that the nonmoving party has failed to present
evidence in support of some element of its case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-23. There is no requirement, however, Athat the moving party support
its motion with affidavits or other similar materials negating the opponent=s claim.@ Id. at 323.
Once the moving party has met his burden, Rule 56 Arequires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by the >depositions, answers to
interrogatories, and admissions of file,= designate >specific facts showing that there is a genuine
issue for trial.=@ Id. at 324 (quoting former Fed. R. Civ. P. 56(e)). The nonmoving party need not
present evidence in a form necessary for admission at trial; however, he may not merely rest on
his pleadings. Celotex, 477 U.S. at 324. A[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential to that party=s
case, and on which that party will bear the burden of proof at trial.@ Id. at 322.
After the plaintiff has properly responded to a proper motion for summary judgment, the
court Ashall@ grant the motion if there is no genuine issue of material fact, and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The substantive law will
identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is genuine Aif the evidence is such that a reasonable jury could

2

return a verdict for the nonmoving party.@ Id. at 248. A[T]he judge=s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.@ Id. at 249. His guide is the same standard necessary to direct a verdict:
Awhether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.@ Id. at 251-52; see also
Bill Johnson=s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the
nonmoving party Amust do more than show that there is some metaphysical doubt as to the
material facts.@ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). The evidence supporting a claim must be Asubstantial,@ Marcus v. St. Paul Fire and
Marine Ins. Co., 651 F.2d 379 (5th Cir., Unit B, 1981); a mere scintilla of evidence is not enough
to create a genuine issue of fact. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004);
Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249-1250 (11th Cir. 2004). If
the non-movant=s evidence is so thoroughly discredited by the rest of the record evidence that no
reasonable jury could accept it, the evidence fails to establish the existence of a genuine issue of
fact requiring a jury determination. See Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 1776,
167 L. Ed. 2d 686 (2007) (ARespondent's version of events is so utterly discredited by the record
that no reasonable jury could have believed him. The Court of Appeals should not have relied on
such visible fiction; it should have reviewed the facts in the light depicted by the videotape.@);
Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1290 n. 3 (11th Cir. 2009).

If the

evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d
256 (11th Cir. 1989). Furthermore, the court must Aview the evidence presented through the
prism of the substantive evidentiary burden,@ so there must be sufficient evidence on which the

3

jury could reasonably find for the plaintiff.

Anderson, 477 U.S. at 254; Cottle v. Storer

Communication, Inc., 849 F.2d 570, 575 (11th Cir. 1988).

Nevertheless, credibility

determinations, the weighing of evidence, and the drawing of inferences from the facts are the
function of the jury, and therefore the evidence of the non-movant is to be believed and all
justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The non-movant
need not be given the benefit of every inference but only of every reasonable inference. Brown
v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988).

II. Facts for Summary Judgment Purposes
Applying these standards to the evidence before the court, the following facts are treated
as undisputed and taken in a light favorable to the non-moving plaintiff.
At the time of the events giving rise to this action, in January 2010, the minor plaintiff,
BHJ, was a 14-year-old female student in the eighth grade at Sparkman Middle School, a school
operated by the defendant Madison County School Board. Defendant Ronnie Blair was the
principal of the school, and defendants Jeanne Dunaway and Teresa Terrell were both assistant
principals. Defendant Julie Ann Simpson was a teacher’s aide at the school. Another defendant
who was previously dismissed from this action without prejudice was CJC, a 16-year-old male
student in the eighth grade at Sparkman. This case arises out of the events leading up to and
including CJC’s sexual assault of BHJ in a boys’ restroom during school hours on January 22,
2010.
CJC had a troubled academic and disciplinary history at Sparkman. He came to the
attention of Sparkman administrators for disciplinary action at least fourteen times, including at
least four instances raising questions about sexual harassment of female students. As early as

4

February 4, 2009, CJC was suspended from school for “sexual harassment” involving “making
inappropriate comments to a young lady.” During the 2009-2010 school year, before the assault
on BHJ, CJC had accumulated the following disciplinary infractions 2:
• September 23, 2009 – Defendant Terrell disciplined CJC with three days of suspension
for offering a girl money to beat up another girl and stating he would “like to kill her”; 3
• September 29, 2009 – Defendant Blair disciplined CJC with one day of “in-school
suspension” for failure to follow directions while in “AAP” 4;
• October 16, 2009 – Terrell disciplined CJC with one day of “in-school suspension ”for
a “verbal altercation” while in AAP;
• October 23, 2009 – Terrell suspended CJC from the bus for ten days for saying “fuck
you” to the bus driver; 5
• October 28, 2009 – Terrell disciplined CJC with three days of “in-school suspension”
for “inappropriate touching”; 6

2

The plaintiff argues that the court should draw an adverse inference against the defendants
with respect to their knowledge of the full circumstances underlying CJC’s disciplinary history.
She asserts that the defendants committed spoliation by destroying documentation relating to
CJC’s disciplinary hearing, even after plaintiff’s counsel sent a request to the Board to maintain
the certain records and evidence. The defendants respond, however, that such documentation
supporting a student disciplinary action is routinely destroyed by the school system the summer
after the school year ends, which, in this case, was the summer of 2010. Although plaintiff’s
request to preserve documents and evidence was received by the Board in April 2010, it sought
preservation only of videos, documents, and communications “pertaining” to the January 22,
2010, assault. See Doc. 87-6, p. 28. The preservation request makes no mention at all of
preserving documentation otherwise involving CJC’s disciplinary history. In fact, it does not
even mention CJC. While the Board did preserve all documents and evidence arising out of the
January 22, 2010, assault incident (and have produced them discovery), documentation
underlying other disciplinary infractions involving CJC were routinely destroyed the following
summer after the school year. Under these circumstances, the court cannot say that defendants
negligently or culpably destroyed the documents, and, therefore, spoliation does not apply.
3

See Doc. 87-9, pp. 90 and 102 of 138.

4

AAP is “Alternative Alternate Placement,” a form of in-school suspension (“ISS”).

5

See Doc. 87-9, pp. 90 and 104 of 138.

6

See Doc. 87-9, pp. 90 and 104 of 138.
5

• October 30, 2009 – Terrell disciplined CJC with one day of “out of school suspension”
for disruption and disrespect while in in-school suspension;
• November 18, 2009 – Terrell suspended CJC from riding the bus for 24 days for failing
to obey the driver and failing to “keep his hands off of a female student”; 7
• November 25, 2009 – Terrell disciplined CJC with two days of “in-school suspension”
for disobedience involving “kissing”; 8
• December 15, 2009 – Principal Blair disciplined CJC with one day of “in-school
suspension” for a verbal confrontation with another student;
• December 18, 2009 – Assistant Principal Terrell disciplined CJC with two days of “out
of school suspension” for “threats/intimidation” involving threatening another student in AAP
with him. 9

Blair testified that he was aware that, as early as the 2008-2009 school year, CJC had
been disciplined for harassment of female students.

Included in CJC’s disciplinary record

produced by the defendants is a copy of a disciplinary report from Ardmore High School (part of
the Limestone County school system), dated September 24, 2008, in which CJC was disciplined
for “inappropriate public display of affection.” A note written with the disciplinary report
describes the underlying event as “Touching girls in inappropriate places. Writing inappropriate
note to girls asking them to have sex with him.” (Doc. 87-9, p. 66 of 138).
Just after the Thanksgiving holiday in 2009, rumors began to circulate that CJC was
soliciting girls to meet him to have sex during school hours. The rumors escalated in early
January 2010, and defendant Simpson reported the rumors to Principal Blair. He told her that
CJC had to be “caught in the act” before disciplinary action could be taken against him. Blair
investigated a rumor that CJC was “hooking up” with a female student in the boys’ restroom for

7

See Doc. 87-9, pp. 90 and 105 of 138.

8

See Doc. 87-9, pp. 90 and 106 of 138.

9

See Doc. 87-9, pp. 90 and 107 of 138.
6

the purpose of having sex. Blair interviewed both CJC and the girl alleged to be involved, and
both denied the rumor. He also interviewed other students who reportedly had knowledge of the
events, but all stated they only had heard rumors; none had first-hand knowledge. Even so, Blair
informed Terrell and other administrators and faculty to be on a “heightened state of alert” about
CJC’s activities, and he re-directed a security camera to view down the special-needs hallway.
On January 13, 2010, a female student reported that CJC had touched her inappropriately
on the thigh. Dunaway and Terrell together interviewed the girls who made the report about CJC
and another girl, as well as other students who were identified as possibly having knowledge.
(Dunaway, pp. 36-37, 77; Terrell pp. 144-146). Each witness denied that he or she had seen
anything inappropriate between CJC and another student and had no actual knowledge of it.
(Dunaway, pp. 39-40; Terrell, pp. 145-46). Even so, Terrell and Dunaway placed CJC in inschool suspension for the remainder of that day, pending a meeting with his mother the following
morning. The reason for CJC’s placement in AAP was recorded as for “distraction in class”
rather than inappropriate touching. (Terrell, pp. 145, 147-48, 197-98). Blair and Terrell met
with CJC’s mother the next morning and decided, with her agreement, that it would be best to
place CJC in AAP (in-school suspension) for a period of 20 days.
At the time, Sparkman had a policy or practice of using or allowing AAP students to
perform menial work around the school while they were in suspension.

Although AAP

ordinarily involved the student performing academic work in a particular classroom all day,
rather than changing classes as the rest of the students did, AAP students also could be taken out
of the AAP classroom by faculty or staff to perform menial work. Sometimes AAP students
were taken out in groups to pick up paper and other litter on the school grounds. On January 22,
2010, CJC was taken out of the AAP classroom by a member of the school’s custodial staff to

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perform “clean up” duties in the hallways of the school. While doing so, he was not under the
direct supervision of any faculty or staff member, but working alone, sweeping the halls.
About two weeks before January 22, CJC began asking BHJ to meet him to have sex. It
began in a physical education class, when CJC approached BHJ and another female student to
ask BHJ if she would perform oral sex on him. BHJ did not respond, but she was aware of the
rumors that CJC and another female student were “hooking up” to have sex. These requests by
CJC for sex continued, at least until January 13, when CJC was placed in AAP. 10 BHJ did not
report CJC’s requests immediately to school officials, but on January 21, the day before the
assault, BHJ reported the requests to defendant Simpson, a teacher’s aide working with the
physical education classes. The record does not indicate whether or how Simpson responded.
There is no indication that Simpson counseled BHJ or reported the information to school
administrators. BHJ also reported CJC’s requests to her then-guardian, Patricia Jones, who
simply told her “don’t do it.” There is no indication that Patricia Jones reported the requests to
school officials.
On January 22, 2010, CJC was working clean-up duties in the hall while still in AAP.
Near the end of the day, as BHJ was going to her physical education class, CJC approached her
again and asked her to meet him in the boys’ restroom to have sex. Again, she ignored him and
went on to class. Shortly after the physical education class began, BHJ approached Simpson and
told her that CJC had just asked her again to have sex. Simpson told her that if she wanted to get
CJC in trouble, she should agree to meet with CJC in the restroom so that teachers could catch

10

BHJ testified that the requests continued throughout the two-week period, culminating on the
assault on January 22. Although the record is clear that CJC was given 20 days of AAP
beginning on January 13, it is also apparent that AAP students frequently were not confined to
the AAP classroom, making it at least possible that CJC had access to BHJ during some of the
time after January 13.
8

him “in the act” before anything happened to her. BHJ initially told Simpson that she did not
want to do that, but after thinking about it for 15 or 20 minutes, she went back to Simpson and
told her she would do it in order for CJC to be caught and punished. Simpson then took BHJ to
the principal’s office to inform someone there of the plan.
Both Simpson and BHJ have testified that they went to the principal’s office (which was
located just across the hall from the entrance to the gym) and spoke to a “female principal.”
Simpson has testified that it was Dunaway to whom they spoke, 11 but that Dunaway seemed
“disinterested.” She did not stop them or tell them not to go ahead with the plan.
After speaking with Dunaway, Simpson returned to the gym and BHJ went looking for
CJC, who was still in the hall. She told him that she would meet him to have sex, and he told her
to go to the sixth-grade boys’ restroom and he would follow her there. BHJ did so, arriving at
the restroom just before CJC. She tried to stall at the water fountain outside the restroom, but
CJC just said, “Are you going to do it?” She replied yes, and went into the restroom. CJC
instructed her to go into the first stall, which was a handicap-accessible stall, making it larger
than usual. She was facing the wall and he instructed her to pull down her pants. Again she
attempted to stall by feigning trouble undoing the button of her jeans, but CJC reached around
her, unbuttoned the button and zipper, and pulled down her pants. Lowering his own pants, CJC
attempted to penetrate BHJ, “poking” her five or six times as she told him to stop and that it hurt.
CJC then turned her around to face him and demanded that she perform oral sex on him.
While this was occurring over the course of five or six minutes, Simpson was attempting
to get staff and faculty to check the restrooms to find them. Ultimately, two teachers entered the
sixth-grade boys’ restroom and saw the feet and legs of two people in a stall. The teachers

11

Dunaway denies that they spoke to her.
9

instructed them to come out of the stall. BHJ was taken aside by a female teacher and CJC was
taken aside by a male teacher. It was reported by the teachers that, although he had pulled up his
pants, CJC had a visible erection. The female teacher asked BHJ if CJC had “touched” her, and
she said yes. She was escorted to the office. On the way to the office, BHJ was met by Assistant
Principal Terrell, who told her, “You’ll probably be suspended for this.”
BHJ and CJC were put in separate rooms in the principal’s office and told to write
statements about what happened. BHJ described the plan to catch CJC and how he raped her in
the restroom stall. CJC denied anything but kissing occurred. Simpson told Terrell that BHJ
should not be in trouble because she (Simpson) told her to go meet CJC in order to “catch him in
the act.”
Ultimately, the police were called and a rape investigation was begun. As part of the
investigation, BHJ was taken to the Child Advocacy Center, where a rape examination was
performed by a registered nurse. The examination revealed trauma, damage, and bleeding in
BHJ’s anus. As a result of the assault, BHJ left Sparkman and transferred to a school in North
Carolina, but her grades have suffered and she received counseling for depression. She stopped
participating in extracurricular activities like basketball and singing in the church choir.
At the time of these events, all teachers, teacher’s aides, and other employees of the
Madison County Board of Education were hired, promoted, retained, terminated, or disciplined
by the Board itself, on recommendation from the superintendent. School principals and assistant
principals had no hiring, firing, or employee disciplinary authority beyond making a
recommendation to the superintendent. Training, including sexual harassment training on the
Board’s policy, was the responsibility of and performed by the Board, not individual schools,
principals, or assistant principals.

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III. Discussion
In this action, the plaintiff’s First Amended Complaint asserts six claims relevant to the
pending motion for summary judgment, 12 summarized as follows:
Count I alleges that the “Teacher Defendants” 13 were negligent toward plaintiff
BHJ by failing to “supervise, discipline, suspend and/or expel defendant [CJC]
despite their knowledge of his habit and practice of continuously and repeatedly
making sexual advances to numerous girls . . .”;
Count IV alleges that the “Teacher Defendants” recklessly or wantonly “breached
their duties to B.H.J. by failing to supervise, discipline, suspend and/or expel
[CJC] despite their knowledge of his habit and practice of continuously and
repeatedly making sexual advances to numerous girls . . .”;
Count V alleges that defendants Blair, Dunaway, and Terrell negligently or
wantonly hired, retained, or trained defendant Simpson by placing her in a
position in which she encouraged BHJ to act as bait in an attempt to catch CJC in
the act of making sexual advances to girls, leading to BHJ’s sexual assault;
Count VI alleges a claim for the tort of outrage against the “Teacher
Defendants” 14;
Count VII alleges a claim under Title IX against the Madison County School
Board (the “Board”) on the basis that the Board was deliberately indifferent to the
student-on-student sexual harassment being conducted by CJC;
Count VIII alleges a claim under 42 U.S.C. § 1983 against the “Teacher
Defendants” and the Madison County School Board for denial of plaintiff’s
“Fourteenth Amendment Equal Protection rights by failing to protect her from
harassment, intimidation and sexual assault and through active participation in a
[sic] incompetent scheme whereby Plaintiff was left alone and unprotected in a
bathroom to be used as bait to catch a sexually-aggressive student.”

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Counts II and III allege claims only against defendant CJC. As CJC was previously
dismissed as a defendant in this action, the court will not further address these two counts.
13

The First Amended Complaint specifically designates the “Teacher Defendants” to include
defendants Blair, Dunaway, Terrell, and Simpson only. (See First Amended Complaint, ¶ 22).
14

The claim also is asserted against CJC, who is no longer a defendant in this action.
11

The Board, Blair, Dunaway, and Terrell move for summary judgment on all of these claims
against them. Simpson has not moved for summary judgment. As jurisdiction for adjudication
of the state-law claims depends upon the existence of federal jurisdiction, the court will address
the federal claims first.

A. Title IX
Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681(a), mandates that
“[n]o person in the United States 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.” The Board does not dispute that it was then and is now a
recipient to Federal financial assistance, subject to Title IX. Sexual harassment of students is
one form of discrimination on the basis of sex prohibited by Title IX. See Davis v. Monroe
County Board of Education, 526 U.S. 629, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999). In Davis,
the Supreme Court held that a private damages cause of action could lie against a recipient
school board for “student-on-student” sexual harassment under Title IX, but “only where the
funding recipient acts with deliberate indifference to known acts of harassment in its programs or
activities” and “only for harassment that is so severe, pervasive, and objectively offensive that it
effectively bars the victim’s access to an educational opportunity or benefit.” Davis v. Monroe
County Board of Education, 526 U.S. 629, 633, 119 S. Ct. 1661, 1666, 143 L. Ed. 2d 839 (1999).
The funding recipient’s conduct or failure to act to end harassment is the key to its liability. The
Board is not responsible for the discriminatory or criminal acts of CJC, but only for its own
alleged failure to prevent or end the harassment known to it.

12

Potential Title IX liability extends only to the funding recipient, the Board in this case.
And, it is liable only for its own failures. A funding recipient is not liable on mere respondeat
superior grounds. Referring to its earlier decision in Gebser v. Lago Vista Independent School
District, 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998), the Court explained:

[W]e rejected the use of agency principles to impute liability to the district for the
misconduct of its teachers. 524 U.S., at 283, 118 S. Ct. 1989. Likewise, we
declined the invitation to impose liability under what amounted to a negligence
standard—holding the district liable for its failure to react to teacher-student
harassment of which it knew or should have known. Ibid. Rather, we concluded
that the district could be liable for damages only where the district itself
intentionally acted in clear violation of Title IX by remaining deliberately
indifferent to acts of teacher-student harassment of which it had actual
knowledge. Id., at 290, 118 S. Ct. 1989. . . . Liability arose, rather, from “an
official decision by the recipient not to remedy the violation.” Gebser v. Lago
Vista Independent School Dist., supra, at 290, 118 S. Ct. 1989. By employing the
“deliberate indifference” theory already used to establish municipal liability under
Rev. Stat. § 1979, 42 U.S.C. § 1983, [citations omitted], we concluded in Gebser
that recipients could be liable in damages only where their own deliberate
indifference effectively “cause[d]” the discrimination, 524 U.S., at 291, 118 S. Ct.
1989; . . . . The high standard imposed in Gebser sought to eliminate any “risk
that the recipient would be liable in damages not for its own official decision but
instead for its employees’ independent actions.” 524 U.S., at 290–291, 118 S. Ct.
1989.

Davis v. Monroe County Board of Education, 526 U.S. 629, 642-643, 119 S. Ct. 1661, 1671, 143
L. Ed. 2d 839 (1999). A recipient is deliberately indifferent to sexual harassment “only where
the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the
known circumstances.” Davis, 526 U.S. at 648; see also Williams v. Board of Regents of
University System of Georgia, 477 F.3d 1282, 1295 (11th Cir. 2007). Courts are hesitant to
second-guess the decisions of school administrators in the area of student discipline and control,
unless they are “clearly unreasonable” in response to knowledge of sexual harassment. Id.
Furthermore, it must be the deliberate indifference of the recipient that is the causation of the
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harassment suffered by the victim. As the Eleventh Circuit has said, “a Title IX recipient may
not be liable for damages unless its deliberate indifference ‘subject[s]’ its students to harassment.
That is, the deliberate indifference must, at a minimum, ‘cause [students] to undergo’ harassment
or ‘make them liable or vulnerable’ to it.” Williams, at 1295-1296 (some internal quotation
marks omitted).
The Eleventh Circuit has described four elements that make up a Title IX action for
student-on-student sexual harassment.

A plaintiff seeking recovery for a violation of Title IX based on student-onstudent harassment must prove four elements. First, the defendant must be a Title
IX funding recipient. Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir.), vacated on
other grounds, 525 U.S. 802, 119 S. Ct. 33, 142 L. Ed. 2d 25 (1998), reinstated,
171 F.3d 1264 (11th Cir. 1999). Second, an “appropriate person” must have
actual knowledge of the discrimination or harassment the plaintiff alleges
occurred. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct.
1989, 141 L. Ed. 2d 277 (1998). “[A]n ‘appropriate person’ ... is, at a minimum,
an official of the recipient entity with authority to take corrective action to end the
discrimination.” Id. Third, a funding recipient is liable for student-on-student
harassment only if “the funding recipient acts with deliberate indifference to
known acts of harassment in its programs or activities.” Davis, 526 U.S. at 633,
119 S. Ct. 1661. In considering this element, we analyze the conduct of the
funding recipient, not the alleged harasser; we do this to ensure that we hold the
funding recipient liable only if the funding recipient’s deliberate indifference
“subjected” the plaintiff to discrimination. Id. at 640–41, 119 S. Ct. 1661.
Therefore, we will not hold a funding recipient liable solely because a person
affiliated with the funding recipient discriminated against or harassed the plaintiff.
Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1284 (11th Cir. 2003).
Fourth, the discrimination must be “so severe, pervasive, and objectively
offensive that it effectively bars the victim’s access to an educational opportunity
or benefit.” Davis, 526 U.S. at 633, 119 S. Ct. 1661.

Williams v. Board of Regents of University System of Georgia, 477 F.3d 1282, 1293 (11th Cir.
2007).

14

In the instant case, it is undisputed that the Board is and was a recipient of Federal
financial assistance and is subject to Title IX. The questions remain whether “an appropriate
person” had sufficient notice of CJC’s sexual harassment of female students to give the Board
actual knowledge of the harassment, whether the Board was deliberately indifferent to such
knowledge, whether deliberate indifference by the Board actually caused plaintiff to suffer
discriminatory harassment, and whether that harassment was sufficiently severe, pervasive, or
objectively offensive as to deny plaintiff access to educational opportunities.
Taking plaintiff’s evidence favorably to her, Blair, Dunaway, and Terrell were aware of
CJC’s troublesome behavior. He was disciplined by them several times before the assault on
plaintiff. Although some of these disciplinary incidents involved allegations of sexual conduct,
the allegations were not so clear or substantiated as to reasonably put the school administrators
on notice that CJC was involved in serious or pervasive harassment. For example, although
CJC’s school records include a disciplinary notice for “[t]ouching girls in inappropriate places[,]
and [w]riting inappropriate note to girls asking them to have sex with him,” this occurred at a
different school [Ardmore High School] in a different school system before CJC came to
Sparkman Middle School. At Sparkman, in addition to other non-sexual disciplinary infractions,
CJC was disciplined in February 2009 for “sexual harassment,” involving “making inappropriate
comments to a young lady.” There is no other evidence concerning the nature or severity of the
actual conduct. In October 2009, he was disciplined for saying “fuck you” to a bus driver, and
later in the month, disciplined again for “inappropriate touching.” In November 2009, he was
disciplined again for failing to “keep his hands off of a female student,” and then a week later for
“disobedience” involving “kissing.” On each of these occasions, it was Assistant Principal

15

Terrell who imposed the discipline, and the court has no difficulty finding that she was “an
appropriate person,” but is unconvinced that the information known to her was sufficient to put
the Board on notice of actual sexual harassment.
This disciplinary history, even coupled with CJC’s infractions not overtly involving
sexual harassment of female students, did not give the Board actual knowledge that CJC’s
behavior constituted sexual harassment so severe that it was depriving female students of
educational opportunities. As another judge on this court has noted, there is “an enormous
chasm between the terms ‘sexual harassment’ and ‘sexual misconduct,’” and that Title IX speaks
only to the former. “While sexual misconduct may form the basis of illegal acts, and subject the
perpetrator to liability, that does not make such acts into sexual harassment.” Benefield ex rel.
Benefield v. Board of Trustees of University of Alabama at Birmingham, 214 F. Supp. 2d 1212,
1220 (N.D. Ala. 2002). Under Davis, Title IX sexual harassment must rise the level of being so
severe, pervasive, and objectively offensive that it acts to deprive students of educational
opportunities or benefits based on their sex. While CJC’s disciplinary conduct is disturbing in its
constancy, it cannot be said that it met this rigorous standard. Because school administrators and
teachers daily face the raucous behavior of teenagers, not every form of misbehavior, even
misbehavior with sexual overtones, gives them actual knowledge of conduct that might require
action under Title IX. Rather, the misconduct must involve harassment that is “serious enough
to have the systemic effect of denying the victim equal access to an educational program or
activity.” Hawkins v. Sarasota County School Board, 322 F.3d 1279, 1288 (11th Cir. 2003).
Even if this disciplinary history was enough to give the Board actual knowledge of CJC’s
harassment of female students, the Board was not deliberately indifferent to it. Time and again,
CJC was given various forms of discipline, from in-school suspension to out-of-school

16

suspension. While one may debate the adequacy of the Board’s disciplinary response to CJC, it
cannot be said that it was “clearly unreasonable.” Considering the deference given to school
officials for handling student disciplinary problems, the Board was not deliberately indifferent to
the harassment by CJC.
Evidence that CJC began soliciting sex from BHJ about two weeks before the assault
adds little to the Title IX calculation. Plaintiff’s own evidence is that she did not tell anyone
about CJC’s comments to her until the day before the assault, when she told Simpson and her
guardian, whose only response was to tell BHJ to not have sex with CJC. Other than Simpson,
the teacher’s aide in physical education class, no principal or assistant principal at Sparkman had
any knowledge that CJC was harassing the plaintiff until only minutes before the assault, when
BHJ and Simpson reported it to Dunaway.

The evidence, viewed favorably to plaintiff,

establishes that Simpson and plaintiff told Dunaway about the plan to lure CJC into a trap by
having BHJ agree to meet him in the boys’ restroom to have sex. Even if it is questionable
whether a teacher’s aide is an “appropriate person” to put the Board on notice of these facts,
there can be little question that Dunaway, as an assistant principal, was. Being informed of the
plan, Dunaway was not informed, however, of sexual harassment by CJC that was so severe,
pervasive, and objectively offensive that it denied BHJ equal educational opportunities and
benefits in violation of Title IX. There is no evidence other than that Dunaway understood this
to be an isolated event of harassment involving BHJ, insufficient to create any Title IX actual
knowledge of severe harassment. Indeed, as far as Dunaway knew, BHJ agreed to the plan and
was participating in it freely in order to catch CJC. Regardless of how foolish and perhaps even
negligent this plan may have been, there never was an intent to subject BHJ to sexual harassment
or assault, or even deliberate indifference to her plight. Taking plaintiff’s evidence to be true,

17

Dunaway and, through her, the Board were not deliberately indifferent to CJC’s harassment of
BHJ, but were attempting to stop it, notwithstanding how misguided was the attempt to do so.
The court does not downplay the tragic and horrific harm BHJ suffered. But in order for
the Board, as a recipient to Federal funds, to be liable under Title IX, plaintiff must meet the
“rigorous” 15 standard laid out by the Supreme Court in Davis. The plaintiff simply is not able to
show that the Board, through “appropriate” personnel, had actual knowledge that CJC’s
harassment of plaintiff was so severe, pervasive, and objectively offensive as to systemically
deprive her of educational opportunities and benefits. To the extent the Board was actually
aware of any sexually-related misconduct by CJC, it was not deliberately indifferent to it, but
time and again imposed discipline to control and correct his behavior. While plaintiff may now
second-guess the adequacy of these disciplinary steps, the court is not allowed that luxury.
School administrators are given deference with respect to disciplinary decisions unless those
decisions are “clearly unreasonable.” The court cannot say that the decisions made with respect
to controlling and correcting CJC’s misconduct were “clearly” unreasonable.
The Board’s motion for summary judgment will be granted with respect to plaintiff’s
Title IX claim.

B. § 1983 Equal Protection/Substantive Due Process Claims
Count VIII of the First Amended Complaint alleges a claim for damages against the
Board, Blair, Dunaway, Terrell, and Simpson under 42 U.S.C. § 1983 for violation of the
plaintiff’s constitutional rights “by failing to protect her from harassment, intimidation and

15

See Sauls v. Pierce Cnty. Sch. Dist., 399 F.3d 1279, 1284 (11th Cir. 2005)(“ The Supreme
Court has applied a more rigorous standard when a Title IX plaintiff seeks damages against a
school district for student-on-student harassment.”).
18

sexual assault and through active participation in a [sic] incompetent scheme whereby Plaintiff
was left alone and unprotected in a bathroom to be used as bait to catch a sexually-aggressive
student.” The complaint elaborates further that “the Teacher Defendants and the Madison
County School Board, acting or purporting to act under color of state law, intentionally and
purposefully discriminated against Plaintiff because of her race and/or sex by depriving her of
the rights guaranteed her by the Substantive Due Process and Equal Protection rights found in
the Fifth and Fourteenth Amendment to the U.S. Constitution, and her rights under 42 U.S.C.
§ 1983.”

The court reads this as asserting two distinct constitutional violations:

(1) discriminatory failure, based on plaintiff’s race and/or sex, to protect her from harassment
and sexual assault by CJC, and (2) denial of plaintiff’s substantive due process right of protection
from assault by CJC. Other than Simpson, who has not moved for summary judgment, the
remaining defendants offer various separate arguments for dismissal of this claim.
At the outset, the court recognizes that nothing in Title IX precludes the use of § 1983 as
a parallel or alternative basis for attaching liability to an appropriate defendant for sexual
harassment in the educational context. In Fitzgerald v. Barnstable School Commission, 555 U.S.
246, 129 S. Ct. 788, 172 L. Ed. 2d 582 (2009), the Supreme Court held explicitly that “Title IX
was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or
a substitute for § 1983 suits as a means of enforcing constitutional rights. Accordingly, we hold
that § 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging
unconstitutional gender discrimination in schools.” Id., 555 U.S. at 258, 129 S. Ct. at 797.
Section 1983 provides the following:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
19

secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.

To state a claim under § 1983, the plaintiff must allege “the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108
S. Ct. 2250, 101 L. Ed. 2d 40 (1988); see also Wilborn v. Southern Union State Community
College, 720 F. Supp. 2d 1274, 1307 (M.D. Ala. 2010). Thus, a key distinction between Title IX
and a § 1983 denial of equal educational opportunities is that individual employees of a recipient
of federal financial assistance can be sued under § 1983, but not under Title IX. Both the Board
and defendants Blair, Dunaway, and Terrell are potentially liable under § 1983 as “persons
acting under color of state law.”
(1). Equal Protection and § 1983
Plaintiff’s first § 1983 claim is that she was denied equal protection of the laws when,
due to her sex and/or race, the defendants allowed CJC to sexually harass and assault her. “The
Equal Protection Clause confers a federal constitutional right to be free from sex discrimination.
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273, 99 S. Ct. 2282, 60 L. Ed. 2d 870
(1979).” Williams v. Board of Regents of University System of Georgia, 477 F.3d 1282, 13001301 (11th Cir. 2007). Sex discrimination is understood ordinarily to include sexual harassment.
Clearly, the Equal Protection Clause also confers a constitutional right not be subjected to racial
discrimination by a “person” acting under color of state law. To prove claim of racial or sexual
discrimination, the plaintiff must establish that he or she suffered adverse treatment different
from similarly situated individuals at the hands of someone acting under “color of state” and that

20

such treatment was purposeful discrimination, motivated by a discriminatory animus against the
plaintiff’s race or sex.
In response to plaintiff’s equal protection claims, the defendant Board and Teacher
Defendants Blair, Dunaway, and Terrell deny that they deprived plaintiff of a constitutionally
recognized right in that there is no right to be protected from the acts of another person who is
not a “state actor.” Also, Blair, Dunaway, and Terrell claim they are shielded by qualified
immunity.
Turning first to the Board’s potential § 1983 liability, it is clear that liability cannot be
predicated merely on respondeat superior due to the Board’s employment relationship with
Blair, Dunaway, Terrell, or Simpson. There must be some evidence that the constitutional
deprivation alleged by the plaintiff was caused by a policy, custom, or practice of the Board. See
Monell v. Department of Social Services of City of New York, 436 U.S. 658, 661, 98 S. Ct.
2018, 2021, 56 L. Ed. 2d 611 (1978). It is well established that

[G]overnmental entities. . . cannot be held liable under 42 U.S.C. § 1983 on a
theory of respondeat superior. See Monell, 436 U.S. at 694, 98 S. Ct. 2018, 56
L.Ed.2d 611. Instead, such entities may be held liable only for the execution of a
governmental policy or custom. Id.; see also Canton v. Harris, 489 U.S. 378,
385, 109 S. Ct. 1197, 103 L.Ed.2d 412 (1989) (“[A] municipality can be found
liable under § 1983 only where the municipality itself causes the constitutional
violation at issue. Respondeat superior or vicarious liability will not attach under
§ 1983.” (emphasis in original)).

Adcock v. Baca, 157 F. App'x 118, 119-120 (11th Cir. 2005).
In the instant case, there simply is no evidence of any Board policy, custom, or practice
that itself resulted in CJC’s sexual harassment or assault of BHJ. It is undisputed that no one
representing the Board was aware of CJC’s harassment of BHJ until shortly before the assault
occurred in the boys’ restroom. Although plaintiff has testified that CJC was making sexual
21

comments and propositions to her for about two weeks before the assault, she admits that she
told no school official or teacher about them until she approached Simpson in gym class the day
before the assault. No action, inaction, policy, or custom by the Board caused or allowed the
harassment by CJC to continue, much less that it did so for racially or sexually discriminatory
reasons. Moreover, Simpson’s and Dunaway’s scheme to use BHJ as “bait” to catch CJC in the
act of sexual harassment cannot be attributed to any policy or custom of the Board. Plaintiff has
pointed to no written or unwritten policy endorsed by the Board to use students as “bait” to catch
other students in misconduct, 16 and she can point to no other instances of similar conduct
approved by the Board from which the court might infer a custom or practice of doing so.
Lacking evidence that the Board’s policy, practice, or custom allowed student-on-student
harassment, whether racially or sexually based, therefore, plaintiff cannot establish an equal
protection violation by the Board, and the Board is entitled to summary judgment on this claim.
Defendants Blair, Dunaway, and Terrell also are entitled to summary judgment on
plaintiff’s equal protection claim. First, there is no evidence that Blair and Terrell were aware
either of CJC’s sexual harassment of BHJ or of the scheme to use plaintiff as “bait” to catch him.
They did nothing to deprive plaintiff of equal protection because they were unaware of a need to
stop the alleged harassment by CJC and they did not participate in the “sting” operation to catch
CJC. Although Dunaway was also unaware of CJC’s harassment of BHJ until shortly before
plaintiff was sent to the boys’ restroom on a misguided “sting” designed to catch CJC, the
evidence favorable to the plaintiff shows that she was aware of Simpson’s scheme to catch CJC

16

Plaintiff argues that Blair interpreted the Board’s policy prohibiting sexual harassment to
require that students be “caught in the act” before they could be disciplined for harassment.
Even if this is true, such an interpretation would not be the Board’s policy or practice, but
Blair’s. Because Monell prohibits respondeat superior liability under § 1983, the Board is not
liable for Blair’s restrictive interpretation of its policy.
22

using BHJ as bait and did nothing to stop it. Nevertheless, the court concludes that she is entitled
to qualified immunity from § 1983 liability with respect to her participation in the scheme.
“Qualified immunity protects government officials performing discretionary functions
from liability if their conduct does not violate ‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’ Hope v. Pelzer, 536 U.S. 730, 122
S. Ct. 2508, 2515, 153 L.Ed.2d 666 (2002) (citation omitted). The burden rests on the plaintiff to
show that qualified immunity is not appropriate. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002).” Snider v. Jefferson State Community College, 344 F.3d 1325, 1327 (11th Cir. 2003).
For a constitutional right to be “clearly established” for immunity purposes, the law must be so
well established and clear that a reasonable person standing in the shoes of the defendant would
be aware that his conduct will contravene the right at the point in time when the conduct occurs.

Officials are entitled to fair warning from the preexisting law that their alleged
acts, at the time the acts occurred, were unconstitutional. Hope, 122 S. Ct. at
2515. For a constitutional right to be clearly established in a given case, the
right’s contours must be so clear that every, objectively reasonable official must
understand that what the defendant, in the context of the circumstances of the
case, is doing clearly violates the right. See Vinyard v. Wilson, 311 F.3d 1340,
1353 (11th Cir. 2002). That the very act (or something materially similar to it) in
question has previously been held unlawful by a court is not always necessary.
But in the light of preexisting law, the unlawfulness must be apparent: plain,
clear, obvious. Unless the government official’s act is so obviously wrong, in the
light of preexisting law, that only a plainly incompetent official or one who was
knowingly violating the law would have committed the act, the official is entitled
to qualified immunity. See Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092,
1096–97, 89 L. Ed. 2d 271 (1986). “When case law is needed to ‘clearly
establish’ the law applicable to the pertinent circumstances, we look to decisions
of the U.S. Supreme Court, the United States Court of Appeals for the Eleventh
Circuit, and the highest court of the pertinent state.” Marsh v. Butler County,
Ala., 268 F.3d 1014, 1032–33 n. 10 (11th Cir.2001)(en banc).

Id. at 1328.

23

There is no question that Dunaway was exercising her discretion as an assistant principal
when she acquiesced to the scheme to catch CJC. Certainly, detection and control of student
misconduct is well within the discretionary authority of school officials. The burden then shifts
to the plaintiff to point out authority existing at the time (January 22, 2010) that would give an
objectively reasonable school official fair warning that allowing a willing African-American
female student to meet with a male student for the purpose of catching him in the act of sexual
harassment would deprive the female student of her constitutional right to equal protection.
Plaintiff has not done so; she has pointed to no Supreme Court, Eleventh Circuit, or Alabama
Supreme Court holdings that are even reasonably close to the facts of this case. While one might
question the wisdom of the scheme proposed by Simpson, there never was an intent that BHJ
submit to CJC sexually.

Even under plaintiff’s evidence, neither Simpson nor Dunaway

expected plaintiff to engage in sex with CJC or that she would be sexually assaulted by him.
Rather than acquiescing to CJC’s harassment, the scheme was intended -- however misguided -to put a stop to the harassment. Thus, this case is unlike even the Tenth Circuit case of Murrell
v. School District No. 1, 186 F.3d 1238 (10th Cir. 1999), in which school officials were aware of
ongoing sexual harassment and took no steps to stop it. Here, even this bungled “sting” was
intended to put a stop to the harassment. Rather than purposefully depriving BHJ of equal
protection, Dunaway and Simpson foolishly believed they were helping her. There were no
factually similar cases existing in 2010 that would reasonably warn a school official that
concocting such a scheme, with a willing student, might violate her constitutional rights. 17 In the

17

The court does not express the opinion that Dunaway’s and Simpson’s acts on January 22,
2010, actually deprived BHJ of any constitutional right, but, rather, that qualified immunity
protects them even if a deprivation occurred.
24

absence of such fair warning, Dunaway is entitled to qualified immunity on plaintiff’s
constitutional claim.
(2) Substantive Due Process Claim
Plaintiff also alleges that the Board and the Teacher Defendants (Blair, Dunaway, Terrell,
and Simpson) violated her constitutional right to substantive due process by failing to protect her
from the harassment and sexual assault of CJC. Notwithstanding the allegations of the First
Amended Complaint, plaintiff’s brief in opposition to summary judgment does not address the
defendants’ argument that substantive due process does not require the defendants to protect a
student from the misconduct of a non-state actor, such as another student. Plaintiff limits her
discussion solely to assertion of an equal protection claim. (See Doc. 94, pp. 37-43). It appears,
therefore, that she has abandoned her substantive due process claim, or, at least, finds nothing to
dispute in defendants’ discussion of the claim.
In any event, the court agrees with defendants that there is no substantive due process
right implicated by the facts involving the Board, Blair, Dunaway, and Terrell. 18 Even though
plaintiff was a student under the charge of the defendants at the time she was sexually assaulted,
the Eleventh Circuit has made clear that there is no substantive due process right to expect state
officials to protect someone from the misconduct of a non-state actor. As the Eleventh Circuit
has explained:

The [Supreme] Court has specifically held that the substantive due process
component of the Due Process Clause does not require a state to protect its
citizens against injury by non-state actors. DeShaney v. Winnebago County Dep't
of Social Serv., 489 U.S. 189, 195, 109 S. Ct. 998, 1003, 103 L. Ed. 2d 249 (1989)
(“[N]othing in the language of the Due Process Clause itself requires the State to

18

As Simpson has not moved for summary judgment, the court has not examined whether such a
claim exists against her.
25

protect the life, liberty, and property of its citizens against invasion by private
actors.”); accord Lovins v. Lee, 53 F.3d 1208, 1209 (11th Cir. 1995) (no general
substantive due process right to be protected against criminals even when they
were wrongfully released).

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1296 (11th Cir. 2005). Addressing the
concept of substantive due process and the Supreme Court’s DeShaney decision in the context of
a student shot accidentally and killed by a gun he himself brought to school, a district court in
Florida has written:

In DeShaney, the Supreme Court announced the now firmly entrenched rule that
the Due Process Clause of the Fourteenth Amendment does not impose a
constitutional duty upon a state to protect individuals from private violence. See
DeShaney, 489 U.S. at 195–97, 109 S. Ct. 998, 103 L.Ed.2d 249. In that case, the
Winnebago County Department of Social Services (the County) received
numerous reports that Joshua, a small child, was being abused by his father. Id. at
192–93, 109 S. Ct. 998, 103 L.Ed.2d 249. Joshua, temporarily removed from his
father’s custody, was soon returned to his father’s care. Id. The County
continued to receive reports that Joshua was being abused by his father but failed
to act. Id. Eventually, it was alleged that Joshua’s father beat him so severely
that he suffered permanent brain damage. Id. Joshua and his mother sued the
County and several of its employees, alleging that the County had violated the
Substantive Due Process Clause of the Fourteenth Amendment by failing to
intervene on Joshua’s behalf and protect him from his father’s abuse. Id.
The DeShaney Court rejected plaintiffs’ argument that the County assumed from
its knowledge of the father’s actions. Relying on the premise that the purpose of
the Due Process Clause is “to protect the people from the State, not to ensure that
the State protects them from each other,” the Court held that:
[N]othing in the ... Due Process Clause itself requires the State to
protect the life, liberty, and property of its citizens against invasion
by private actors. The Clause is phrased as a limitation on the
State's power to act, not as a guarantee of certain minimal levels of
safety and security. It forbids the State itself to deprive individuals
of life, liberty, or property without “due process of law,” but its
language cannot fairly be extended to impose an affirmative
obligation on the State to ensure that those interests do not come to
harm through other means.... Consistent with these principles, ...
the Due Process Clause[ ] generally confer[s] no affirmative right
to governmental aid, even where such aid may be necessary to
26

secure life, liberty or property interests of which the government
may not deprive the individual.
Id. at 195–96, 109 S. Ct. 998, 103 L. Ed. 2d 249.

Niziol v. Pasco County District School Board, 240 F. Supp. 2d 1194, 1203-1204 (M.D. Fla.
2002). The district court noted two recognized exceptions to the DeShaney doctrine: (1) the
special-relationship doctrine, and (2) the state-created or enhanced danger doctrine. Id. at 1204.
The former applies only in custodial situations, where the state has affirmatively limited the
plaintiff’s ability to protect his own interest. See Id. at 1204-1205; White v. Lemacks, 183 F.3d
1253, 1257 (11th Cir. 1999). Mere compulsory school attendance laws do not create such a
special custodial relationship. Id.
The second exception -- the state-created or enhanced danger doctrine -- has a closer fit
to the facts of this case. Under this exception, the state may have a substantive due process
obligation to protect a person from harm by a non-state actor where the state itself has
affirmatively created or enhanced the danger by making the person more vulnerable to the harm.
The Tenth Circuit has explained the exception, saying:

Many courts have noted that “DeShaney ... leaves the door open for liability in
situations where the state creates a dangerous situation or renders citizens more
vulnerable to danger.” Reed, 986 F.2d at 1125 (citing DeShaney, 489 U.S. at 201,
109 S. Ct. at 1006); Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993).
This state-created danger doctrine “necessarily involves affirmative conduct on
the part of the state in placing the plaintiff in danger.” L.W. v. Grubbs, 974 F.2d
119, 121 (9th Cir. 1992) (citations omitted), cert. denied, 508 U.S. 951, 113 S. Ct.
2442, 124 L. Ed. 2d 660 (1993).

Graham v. Independent School District No. I-89, 22 F.3d 991, 995 (10th Cir. 1994). Mere
passive knowledge of a danger or a failure to act in the face of danger is not enough; state actors
must create the danger or make it worse by some affirmative act.
27

In this case, plaintiff’s evidence shows that Simpson concocted a scheme and proposed to
BHJ that she agree to meet CJC in the boys’ restroom where teachers would catch CJC in the act
of harassing her. The scheme was explained to Dunaway, who acquiesced to it, 19 at least to the
extent that she did not stop it. Insofar as Dunaway’s acquiescence is concerned, the court finds
that this fails to meet the requirement that the state actor affirmatively create or enhance the
danger BHJ was exposed to. 20 Dunaway’s silence and failure to stop the plan 21 were more akin
to a passive failure to protect BHJ with knowledge of the danger she faced, precisely the type of
failure to protect DeShaney held did not constitute a violation of substantive due process.
Because neither the Board, Blair, Terrell, nor Dunaway created or enhanced the danger to BHJ,
the exception does not apply to them, and the holding in DeShaney leaves plaintiff with no
substantive due process claim against these four defendants. They are entitled to summary
judgment on this claim.
Without retreading the discussion above, the court also finds that Blair, Terrell, and
Dunaway are entitled to qualified immunity with respect to plaintiff’s substantive due process
claim. In January 2010 there simply was no pertinent case authority that would give these
officials fair warning that a well-intended but foolish scheme to use a willing female student as
“bait” to catch a male student in the act of sexual harassment violated the substantive due process

19

Of course, there is no basis for liability on the part of the Board, Blair, or Terrell, as none of
them was aware of the danger to BHJ or the proposed scheme to catch CJC in the restroom.
They did not create or enhance the danger to BHJ.
20

Again the court has no occasion to consider the application of the exception to Simpson’s
conduct as she has not moved for summary judgment.
21

The evidence on this point comes from Simpson’s affidavit, in which she stated that, when the
plan was explained to her, Dunaway was “disinterested” and did not try to stop the
implementation of the plan. There is no evidence that Dunaway participated in or actively
encouraged the plan to use BHJ to catch CJC.
28

rights of the female student. Even if the state-created or enhanced exception applies to the facts
of this case, qualified immunity exists to shield Blair, Dunaway, and Terrell because there was
no clearly established right of which an objectively reasonable school official would be aware.
Indeed, the DeShaney authority would suggest to school officials the absence of such a right.
Again, they are entitled to summary judgment based on their qualified immunity.

C. State-Law Claims
Plaintiff also asserts four state-law theories of liability against Blair, Dunaway, and
Terrell 22: negligence; wantonness; negligent/wanton hiring, retention, and training 23; and
outrage. In moving for summary judgment, the defendants contend that the facts do not support
any of these theories and that they are entitled to state-agent immunity. Because the tort of
outrage requires an intentional act, the court will discuss it separately from the
negligence/wantonness theories.
(1) Negligent/Wanton Hiring, Retention, Training and Supervision
Plaintiff alleges that Blair, Dunaway, and Terrell negligently or wantonly hired, retained,
trained, and supervised Simpson, proximately leading to Simpson concocting and proposing to
BHJ the scheme to catch CJC by appearing to agree to meet him in the boys’ restroom to have
22

These claims are asserted explicitly against the “Teacher Defendants” only and not the Board
itself. The court assumes the Board is not named as a defendant in these claims as a result of the
Alabama Supreme Court’s recently holding that local school boards are “state agencies” for
purposes of invoking Alabama state constitutional sovereign immunity, at least with respect to
state-law tort claims. See Ex parte Hale County Bd. of Education, 14 So. 3d 844 (Ala. 2009), but
see Ex parte Madison County Bd. of Education, 1 So. 3d 980 (Ala. 2008), holding that for
purposes of an employment action, a local school board is not an “arm of the state” entitled to
claim Eleventh Amendment immunity. In any event, the Board is not a defendant in these
claims.
23

Simpson is named as a defendant in these claims as well, except for the claim of
negligent/wanton hiring, retention, and training. She has not moved for summary judgment.
29

sex. The First Amended Complaint alleges that Blair, Dunaway, and Terrell owed a duty to the
students at Sparkman Middle School to exercise care in the hiring, retention, training, and
supervision of teachers at the school, and that they negligently or wantonly “breached their duty.
. . in hiring, training, retaining and/or supervising Defendant Simpson when she executed a plan
encouraging Plaintiff to place herself in a position where she could be raped and sexually
assaulted.” It is important to note that plaintiff does not allege this theory against the Board,
which is not named as a defendant in this count of the complaint. (See Doc. 9, Count V, ¶¶ 7174).
This claim fails against Blair, Dunaway, and Terrell because they were only Simpson’s
supervisors, not her employer with authority to make, retain, or supervise the employment
relationship. Only the Board itself could do that. Under Alabama law, the tort theory of
negligent hiring, retention, training, or supervision lies only against the employer of an
“incompetent” employee, not the co-employees or even supervisors of the “incompetent”
employee. Alabama law recognizes a cause of action against an employer who negligently hires,
retains, trains, or supervises an “incompetent” employee where the incompetence of the
employee proximately results in injury to another. It has been stated this way:

In the master and servant relationship, the master is held responsible for his
servant’s incompetency when notice or knowledge, either actual or presumed, of
such unfitness has been brought to him. Liability depends upon its being
established by affirmative proof that such incompetency was actually known by
the master or that, had he exercised due and proper diligence, he would have
learned that which would charge him in the law with such knowledge. It is
incumbent on the party charging negligence to show it by proper evidence. This
may be done by showing specific acts of incompetency and bringing them home
to the knowledge of the master, or by showing them to be of such nature,
character, and frequency that the master, in the exercise of due care, must have
had them brought to his notice. While such specific acts of alleged incompetency
cannot be shown to prove that the servant was negligent in doing or omitting to do
the act complained of, it is proper, when repeated acts of carelessness and
30

incompetency of a certain character are shown on the part of the servant to leave
it to the jury whether they would have come to his knowledge, had he exercised
ordinary care.

Armstrong Business Services v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001) (citations and
internal quotation marks omitted); see also Gardner v. State Farm Mutual Automobile Insurance
Co., 842 So. 2d 1, 9-10 (Ala. Civ. App. 2002). This statement of the principles underlying a
claim of negligent/wanton hiring, retention, supervision, or training makes clear that the liability
runs to the employer precisely because it is the employer who exercises the authority to hire,
retain, train, or supervise the alleged “incompetent” employee. It is the employer who has the
authority (and duty) to prevent the harm caused by the “incompetent” employee.
This reading of Alabama law is supported by the somewhat foggy case of Galactic
Employer Services, Inc. v. McDorman, 880 So. 2d 434 (Ala. Civ. App. 2003). There, Galactic
sued a director (Clarence McDorman) and an officer (Slate McDorman) of another company,
Matrix, alleging various claims, including that the McDormans negligently hired and supervised
the CEO of Matrix, Zeyad Awwad, who fraudulently represented to Galactic that Matrix would
reimburse Galactic for certain funds advanced by Galactic. Awwad was later fired by Matrix,
but Matrix still owed the debt to Galactic. While the majority opinion opaquely discusses the
roles and duties of corporate officers and directors to creditors, it ultimately concluded that
“Clarence [McDorman] and Slate [McDorman] are not liable to Galactic for their alleged
negligence in hiring and supervising Awwad because they owed no duty to Galactic.” Id. at 441.
This rationale for the decision was further expounded upon in Judge Murdock’s concurring
opinion, in which he explained:

Galactic also complains, however, of negligence in the hiring and supervision of
Awwad. It is true that our Supreme Court has recognized the torts of negligent
31

training and negligent supervision -- see, e.g., Big B, Inc. v. Cottingham, 634
So. 2d 999, 1002-03 (citing Lane v. Central Bank of Alabama, N.A., 425 So. 2d
1098, 1100 (Ala. 1983), and Thompson v. Havard, 285 Ala. 718, 723, 235 So. 2d
853 (1970)) -- as well as the tort of negligent hiring -- see, e.g., CP & B Enters.,
Inc. v. Mellert, 762 So. 2d 356, 362 (Ala. 2000) (noting that the jury could have
found that the defendant was “negligent in hiring, supervising and retaining” an
employee); Callens v. Jefferson County Nursing Home, 769 So. 2d 273, 278
(Ala.2000) (reversing the dismissal of, among other things, a claim for “negligent
hiring, training, and supervision”); and Floyd v. Macon County Commission, 707
So.2d 262 (Ala.Civ.App. 1997) (citing Big B, Inc. v. Cottingham )).
The real problem for Galactic in attempting to hold Clarence [McDorman] liable
in this regard (and, ultimately, Galactic’s real problem in attempting to recover in
this case), however, is that Clarence was not the party who hired Awwad. The
corporation, The Matrix, Inc., hired Awwad. Matrix was the employer; any
negligence by the “employer” in hiring and supervising Awwad legally is
negligence on the part of the corporation.

Galactic Employer Services, Inc. v. McDorman, 880 So. 2d 434, 445 (Ala. Civ. App. 2003)
(Murdock, J., concurring). This confirms the basic rule that the torts of negligent or wanton
hiring, retention, training, or supervision of an “incompetent” employee runs only against the
employer, not supervisory co-employees of the “incompetent” employee. 24

24

But see Ex parte Bitel, 45 So. 3d 1252 (Ala. 2010). Of the many reported cases in Alabama
dealing with a claim for negligent hiring or supervision, this is the only one in which supervisory
co-employees of the alleged “incompetent” employee are named as defendants. For several
reasons, this case is distinguishable from the instant case and does not clearly establish the
proposition that supervisory co-employees are liable along with the employer of the
“incompetent” employee.
In this case, the mother of a minor female sued the Alabama Department of Public Safety
and several supervisory officers of the Department, alleging that a State Trooper, employed by
the Department and supervised by the Department’s personnel, sexually harassed and assaulted
her minor daughter during a traffic stop. The Department was dismissed from the case due to its
status as a state agency. The supervisory personnel sought dismissal of the claims against them
on state-agent immunity grounds, which was denied by the trial court. The supervisory
personnel then sought a writ of mandamus from the Alabama Supreme Court to compel the trial
court to grant the dismissal on immunity grounds. In an opinion by Justice Bolin, the court
stressed the limited nature of mandamus relief, which could address only immunity grounds for
dismissal. The court refused to consider, on a petition for writ of mandamus, whether the
supervisory personnel simply were not suable for the wrongs of their subordinate. The court
explained:
32

The nature of the employment relationship also suggests that potential liability for the tort
of negligent/wanton hiring, supervision, or training is limited to the employer of the
“incompetent” employee. The employee owes a duty to follow the directions of the employer in
carrying out his job responsibilities. It is the nature of the master-servant relationship that the
master controls the manner in which the servant performs the work. The employer is liable for
the negligence of the servant precisely because he retains the authority to direct the work of the
servant in a way to avoid causing injury to others. When an employee is entrusted by the master
with supervising the work of subordinate co-employees, his duty to do so runs to the master. It is
his responsibility to supervise other employees as directed by the master. Imposing a separate
and distinct duty to “supervise reasonably,” running to other people outside the master-servant
relationship, creates the possibility of a conflict of duties between what the master has directed

The supervisors also asks [sic] this Court to issue the writ of mandamus because,
they say, count VII of the complaint asserts a cause of action based on the
doctrine of respondeat superior and, as a matter of law, the doctrine of respondeat
superior does not hold supervisors, as co-employees, vicariously liable for the
torts of their subordinates. In making this argument, the supervisors are
attempting to address, by mandamus review, an issue other than immunity. A
writ of mandamus is not available to review the denial of a motion to dismiss
based on the defense that the plaintiff’s claim cannot be premised on a theory of
respondeat superior. See Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758
(Ala. 2002) (holding that the denial of a motion to dismiss or a motion for a
summary judgment generally is not reviewable by a petition for a writ of
mandamus, subject to certain narrow exceptions such as immunity). Accordingly,
we decline to address this issue
Ex parte Bitel, 45 So. 3d 1252, 1259 (Ala. 2010). The same would be true of the argument that
supervisory co-employees of an “incompetent” employee cannot be sued for negligent/wanton
supervision and training; the argument simply could not be raised by way of mandamus. The
fact that the Alabama Supreme Court concluded that mandamus was not proper to resolve the
state-agent immunity question at such an early stage of the case cannot be read as overruling or
raising doubts about the fundamental nature of the tort of negligent/wanton hiring, retention,
supervision, or training, which limits its application only to the employer, master, or principal of
the “incompetent” employee or agent.
33

and others claiming a right to the duty, ultimately stripping the master of the right to control the
work of his employees. The master might believe that a certain type of training or supervision is
best for his employees, but supervisory employees charged with carrying out the training might
believe that other or additional training or supervision is “reasonably” necessary if they
personally are to avoid being sued for the incompetence of the subordinate employee. This
conflict of duties undermines the employer’s authority in the workplace and the very legal basis
on which the employer is held liable for the negligence of his employees – namely, that it is he
who controls them. If supervisory personnel do a poor job of training or supervising subordinate
employees, they must answer to their employer. If that poor job of training or supervision results
in injury to another, it is the employer who must answer for it, not the supervisory co-employees
who carried out the training or supervision, for it is the employer who remains responsible for
assuring the competence of his employees.

For this reason, the tort of negligent hiring,

supervision, and training necessarily runs against the employer only, in order to preserve the
responsibility of employees to their employers.
Because it is undisputed that defendants Blair, Dunaway, and Terrell were not Simpson’s
employer, they are entitled to summary judgment with respect to Count V. As they were not
Simpson’s employer (the Board was), they cannot be held liable to plaintiff for negligently or
wantonly hiring, retaining, training, or supervising Simpson.
(2) Negligence/Wantonness
Counts I and IV of the First Amended Complaint allege respectively that the “Teacher
Defendants” (Blair, Dunaway, Terrell, and Simpson) negligently or wantonly “breached their
duties to B.H.J. by failing to supervise, discipline, suspend and/or expel [CJC] despite their
knowledge of his habit and practice of continuously and repeatedly making sexual advances to

34

numerous girls . . .” and “by engaging in a conspiracy to encourage Plaintiff to place herself in a
position where she could be raped and sexually assaulted.” Blair, Dunaway, and Terrell have
moved for summary judgment on these claims, arguing that they are entitled to state-agent
immunity from damages. 25
Alabama law recognizes that teachers and employees of local school boards are entitled
to state-agent immunity when exercising their discretionary functions associated with educating
children. The Alabama Supreme Court reiterated last year:

“State-agent immunity protects agents of the State in their exercise of discretion
in educating students. We will not second-guess their decisions.” Ex parte
Blankenship, 806 So. 2d 1186, 1190 (Ala. 2000). However, “[o]nce it is
determined that State-agent immunity applies, State-agent immunity is withheld
upon a showing that the State agent acted willfully, maliciously, fraudulently, in
bad faith, or beyond his or her authority. [Ex parte ] Cranman, 792 So. 2d [392,]
at 405 [ (Ala. 2000) ].” Ex parte Bitel, 45 So. 3d 1252, 1257–58 (Ala. 2010).

Ex parte Montgomery County Board of Education, 88 So. 3d 837, 843 (Ala. 2012), quoting N.C.
v. Caldwell, 77 So. 3d 561, 566 (Ala. 2011). Local school teachers are within the protections of
the immunity as employees of a local school board, which, in turn, is regarded as an agency or
arm of the State. Application of the immunity requires a burden-shifting process, under which
the defendant claiming the immunity must establish that she was exercising discretionary
functions within the scope of her authority. If the defendant makes that showing, the burden
shifts to the plaintiff to show that the immunity does not apply because the defendant “acted
willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.” Ex parte
Montgomery County Board of Education, 88 So. 3d 837, 843 (Ala. 2012), citing Giambrone v.
Douglas, 874 So. 2d 1046, 1052 (Ala. 2003); Ex parte Davis, 721 So. 2d 685, 689 (Ala. 1998).

25

In these counts, Blair, Dunaway, and Terrell are sued only in their individual capacities.
35

“‘A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to
discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.”’”
Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006), citing and quoting Giambrone,
874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala. 2000)).
Insofar as the plaintiff alleges that Blair, Dunaway, and Terrell negligently or wantonly
failed to more severely discipline or control CJC before he assaulted BHJ, despite having
knowledge that he was sexually harassing female students, state-agent immunity shields them
from liability. It is undisputed that the investigation, assessment, and imposition of student
discipline were well within the discretionary functions of these defendants as the principal and
assistant principals of Sparkman Middle School. The burden of showing why the immunity
should not apply, therefore, shifts to the plaintiff to show that they “acted willfully, maliciously,
fraudulently, in bad faith, or beyond [their] authority.” She has not done so. While observers
may debate whether more should have been done to discipline and control CJC in the weeks and
months leading up to his assault of BHJ, one cannot debate that Blair, Dunaway, and Terrell
acted in good faith to investigate the complaints made about CJC, imposed reasonable discipline
upon him, and otherwise sought to control his behavior.

Even though their multiple

investigations often failed to substantiate the complaints against CJC, they did not willfully or
maliciously turn a blind eye to them, and they usually imposed some form of discipline on CJC,
including both in-school and out-of-school suspension.

There simply is no evidence that they

“acted willfully, maliciously, fraudulently, in bad faith, or beyond [their] authority.”
The analysis is different, however, with respect to the allegation that they engaged in “a
conspiracy to encourage Plaintiff to place herself in a position where she could be raped and
sexually assaulted.”

As to Blair and Terrell, the evidence continues to be that they were

36

completely unaware of the plan proposed by Simpson to have the plaintiff meet CJC in order to
“catch him in the act” of sexual harassment. Accordingly, there is no basis for holding either of
them liable on this theory. The evidence is different for Dunaway, however. Viewing the
evidence favorably to the plaintiff, Simpson and BHJ both approached Dunaway in the
principal’s office to explain the plan proposed by Simpson.

Although she appeared

“disinterested,” she did not stop or discourage them from proceeding with the plan. Even though
no one intended for BHJ to submit to CJC sexually or, certainly, to be assaulted by him, she met
with CJC in the boys’ restroom and, before teachers located them, was sexually assaulted by
him. There is little question that Dunaway’s failure to intervene and stop the Simpson scheme
was either negligent or wanton. The question for immunity purposes is whether she acted
willfully, maliciously, fraudulently, in bad faith, or beyond her authority.
The answer to this question is aided considerably by the Alabama Supreme Court’s
decision in N.C. v. Caldwell, 77 So. 3d 561 (Ala. 2011), reh'g denied (Aug. 12, 2011). In that
case, a female student was raped by an older male student in the boys’ locker room after a gym
class. The plaintiff offered evidence that, after the gym class was dismissed and the teacher,
defendant Caldwell, was outside the gym monitoring students, she was dragged into the locker
room by the male student and raped. When plaintiff and her guardian sued, Caldwell moved for
summary judgment on the basis of his state-agent immunity as a teacher. Plaintiff responded that
Caldwell was not entitled to immunity because he “acted beyond his authority” by appointing the
male student as his student aide and by ignoring and failing to report other students’ complaints
of sexual harassment by the male student. Plaintiff pointed out that there was no legal basis for
Caldwell to appoint a student to act as his “student aide” and that school regulations prohibited
students from being in a class they were not attending.

37

Also, school regulations required

complaints of sexual harassment to be reported to the school principal. Although Caldwell
denied that he had appointed the male student to be his student aide or had authorized him to be
in the gym when not participating in a class, and although he denied ever receiving any
complaints of sexual harassment related to the male student, the Alabama Supreme Court
concluded there were genuine issues of fact precluding summary judgment for Caldwell. If, the
court explained, the jury believed the evidence produced by the plaintiff, it would establish that
defendant Caldwell acted beyond his authority and was not entitled to state-agent immunity.
The same result and rationale apply to the instant case. Although Dunaway denies being
informed of the scheme to catch CJC by sending BHJ to meet him, Simpson has testified clearly
by affidavit that she and BHJ told Dunaway about the plan and that, although she appeared
“disinterested,” she did not stop them from proceeding. Viewing the evidence favorably to the
plaintiff, Dunaway, the assistant principal at Sparkman, approved or ratified the plan. Because
the Madison County Board of Education had adopted regulations dealing with sexual harassment
complaints by students, 26 it would have been beyond Dunaway’s authority to authorize a plan to
use a female student as “bait” to trap a male student suspected of sexual harassment. Because a
material fact question exists as to whether Dunaway knew of and approved the plan, therefore,
she is not entitled to summary judgment on the basis of state-agent immunity. 27

26

See document entitled “Student Sexual Harassment,” dated June 1997, attached as Exhibit 5
to Ronnie Blair’s deposition. (Doc. 87-4, pp. 30-31 of 48). This regulation allowed students to
make verbal complaints of harassment to various school officials. In response to such a
complaint, the regulation required the official to whom the complaint was made to make it
known to the school principal, who would “investigate the complaint and take appropriate
action.” Nothing in the regulation authorized an assistant principal to approve and ratify a
“sting” operation to catch a harasser in the act of harassment. Even if such a plan could be
regarded as an “investigation” of a complaint of harassment, no reasonable school official would
regard it as “appropriate action.”
27

The court notes here that Dunaway also argues that she is shielded from liability under the
38

Moreover, the court has little difficulty concluding that, if plaintiff’s evidence is believed
by a jury, Dunaway’s actions were negligent or even wanton. For a school official to send a 14year old girl to trick a 16-year old boy into believing she is willing to have sex with him for the
purpose trying to catch the boy “in the act” of sexually harassing the girl, and then not carefully
and closely monitor the execution of the scheme, is at best negligent and probably recklessly
wanton. Gambling with the safety of a student in order to carry out an ill-conceived “sting”
operation is not something a reasonable teacher or assistant principal would countenance without
paying very careful attention to it. 28 Plaintiff’s evidence here suggests that after Simpson and

Paul D. Coverdell Teacher Protection Act of 2001, 20 U.S.C. 6731, et seq., which provides in
pertinent part as follows:
[N]o teacher in a school shall be liable for harm caused by an act or omission of
the teacher on behalf of the school if --(1) the teacher was acting within the scope of the teacher’s employment or
responsibilities to a school or governmental entity;
(2) the actions of the teacher were carried out in conformity with Federal,
State, and local laws (including rules and regulations) in furtherance of efforts
to control, discipline, expel, or suspend a student or maintain order or control in
the classroom or school;
***
(4) the harm was not caused by willful or criminal misconduct, gross
negligence, reckless conduct, or a conscious, flagrant indifference to the rights
and safety of the individual harmed by the teacher. [Bolding added for
emphasis].
The court has previously concluded that Dunaway failed to follow the “Student Sexual
Harassment” regulation adopted by the Madison County Board of Education in June 1997; thus
she did not act in conformity with local “rules and regulations” when she and Simpson sent BHJ
to meet CJC, rather than report his conduct to the principal as required by the regulation. Also,
her conduct was “reckless” and a “flagrant indifference to the . . . safety of” BHJ. The Act does
not apply to shield Dunaway from liability.
28

The court should note here that there is no fundamental inconsistency between finding that
39

Dunaway persuaded BHJ to meet with CJC by promising that teachers would “catch” them
before anything happened, they essentially abandoned her. Simpson returned to the gym, and
there is no evidence that Dunaway did anything but sit in her office. They negligently or
wantonly failed to protect BHJ from harm by persuading her to meet with CJC and then making
little or no effort to protect her while she did so. The court finds, therefore, that although Blair
and Terrell are entitled to summary judgment on plaintiff’s claims of negligence and wantonness,
Dunaway is not, and her motion for summary judgment on these claims in Count I and IV will be
denied.
(3) Tort of Outrage
Count VI of the First Amended complaint alleges that the “Teacher Defendants” (Blair,
Dunaway, Terrell, and Simpson) 29 committed the intentional tort of outrage, also known in
Alabama as intentional infliction of emotional distress. Harrelson v. R.J., 882 So. 2d 317 (Ala.
2003); Gunter v. Huddle, 724 So. 2d 544 (Ala. Civ. App. 1998); Thomas v. Williams, 21 So. 3d
1234 (Ala. Civ. App. 2008)(outrage and intentional infliction of emotional distress are the same
tort). The count alleges simply that the defendants’ conduct (without specifying particular
conduct) “was intentional and/or reckless, extreme and outrageous and utterly intolerable in a
civilized society.”

Dunaway engaged in negligent or even wanton conduct by acquiescing to the plan proposed by
Simpson and the finding that Dunaway’s actions were not enough to meet the “rigorous”
requirements of Title IX. Title IX liability is contingent upon finding severe sexual harassment
that systemically deprives the plaintiff of educational opportunities and benefits. A claim
grounded on mere negligence or wantonness can involve injuries quite different (but just as
tragic) than the denial of educational opportunities and benefits at the heart of Title IX. In this
case, the injury to BHJ resulting from Dunaway’s alleged negligence or wantonness was a sexual
assault, not the systemic denial of educational opportunities and benefits required for a claim
under Title IX.
29
This count also names CJC as a defendant, but he is no longer a defendant in this action.
40

The elements of the tort, upon which the plaintiff must offer evidence, are the following:
“The tort of outrage requires that: (1) the actor intended to inflict emotional
distress, or knew or should have known that emotional distress was likely to result
from his conduct; (2) the conduct was extreme and outrageous; (3) the
defendant’s actions caused the plaintiff distress; and (4) ... the distress was severe.
With respect to the conduct element, this Court has stated that the conduct must
be ‘so outrageous in character and so extreme in degree as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized society.’”

Thomas v. Williams, 21 So. 3d 1234, 1237-1238 (Ala. Civ. App. 2008), quoting Gunter v.
Huddle, 724 So. 2d 544, 547 (Ala. Civ. App. 1998)(quoting Harris v. McDavid, 553 So. 2d 567,
569-70 (Ala. 1989)); see also American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala.
1980). Although the court finds that Simpson’s and Dunaway’s encouragement of BHJ to lead
CJC into believing that she would have sex with him in order to catch him “in the act” of sexual
harassment was negligent and perhaps wanton, it does not amount to outrage or the intentional
infliction of emotional distress.

The plaintiff’s evidence does not show that Simpson and

Dunaway intended to inflict emotional harm on the plaintiff, nor does it show that their conduct
was “so extreme in degree as to go beyond all possible bounds of decency.” Also, it was not
their conduct that caused the plaintiff’s emotional injuries.
At the outset, the court draws a distinction between the conduct of Simpson and
Dunaway and that of CJC. It was CJC who knowingly, intentionally, and criminally assaulted
BHJ, but neither Simpson nor Dunaway intended, wanted, or expected that would happen.
CJC’s conduct was a crime. Simpson’s and Dunaway’s conduct was foolishly to send BHJ to
meet CJC, not for the purpose of having sex, but for the purpose of catching CJC in the act of
sexual harassment. Analyzing the tort of outrage, the court must look at the specific conduct of

41

each actor alleged to have committed the tort. CJC’s criminal conduct is not attributable to
Simpson and Dunaway; while his conduct was unquestionably outrageous, that does not mean
necessarily that Simpson’s or Dunaway’s was.
The plaintiff’s evidence clearly shows that neither Simpson nor Dunaway intended to
cause BHJ to suffer emotional distress; neither intended for her to have sex with CJC, and
certainly neither intended for her to be sexually assaulted by him. Although they had no
intention of causing emotional distress to BHJ, it might be argued that they “knew or should
have known that emotional distress was likely to result from [their] conduct.” Again, the court is
unpersuaded.

Plaintiff’s own evidence shows plainly that neither Simpson nor Dunaway

expected that CJC would have an opportunity to harm BHJ before she would be rescued by
teachers. BHJ understood the plan to be that she and CJC would be caught by teachers before
any harm could occur. Thus, at the time they sent her to meet with CJC, they had little reason to
believe that it was “likely” that she would suffer emotional distress. 30
Even if the court were persuaded of the defendants’ culpable state of mind, the claim fails
for two other reasons: the defendants’ conduct was not “extreme and outrageous,” nor was it the
cause of BHJ’s emotional distress. Although it was foolish to send BHJ to meet CJC, the court
cannot say that it was “extreme and outrageous.” The scheme to catch CJC ended horribly and
tragically, but the idea of using BHJ to catch CJC “in the act,” however foolish, was not so
extreme or outrageous as “to be regarded as atrocious and utterly intolerable in a civilized
society.” Perkins v. Dean, 570 So. 2d 1217, 1219 (Ala. 1990), quoting American Road Service
30

This element of the tort of outrage is not synonymous with simple negligence. While
Simpson and Dunaway “should have known” that sending BHJ to act as “bait” to catch CJC
unnecessarily exposed her to danger (even if they did not anticipate that danger), that does not
mean that they should have understood that doing so was “likely” to cause harm. The use of the
term “likely” suggests that the actor in a tort of outrage must anticipate a great probability that
his conduct (not that of someone else) will cause emotional harm.
42

Co. v. Inmon, 394 So. 2d 361, 365 (1981)(citing Restatement (Second) of Torts, § 46,
comment d (1948)). “[T]he tort of outrage is ‘a limited remedy to be applied only in flagrantly
egregious circumstances.’” Gunter v. Huddle, 724 So. 2d 544, 547 (Ala. Civ. App. 1998),
quoting Turner v. Hayes, 719 So.2d 1184, 1187 (Ala.Civ.App.1997), aff'd in pertinent part,719
So.2d 1190 (Ala.1998). Thus, while conduct might be negligent, or even wanton, it does not
necessarily rise to the level of being outrageous because it does not quite possess the
egregiousness necessary to say it is “utterly intolerable in a civilized society.” That is the case
here.
Second, it was not Simpson’s and Dunaway’s scheme that caused plaintiff’s emotional
distress; it was CJC’s criminal assault. At the point BHJ was sent to meet CJC, she was a willing
participant, clearly not suffering severe emotional distress due to the plan. The cause of her
injuries and distress was CJC’s criminality. Thus, plaintiff is not able to show the third element
of the claim – causation – against the “Teacher Defendants.” The motion for summary judgment
in favor of Blair, Terrell, and Dunaway will be granted on this claim. Simpson has not moved
for summary judgment.
Conclusion
Based on the foregoing facts viewed favorably to the plaintiff and the legal principles
explained, the court will grant full summary judgment to the Madison County Board of
Education, Ronnie Blair, and Teresa Terrell, and dismiss with prejudice all claims against them.
Jeanne Dunaway’s motion will be granted as to every claim against her, except counts I and IV,
alleging respectively negligence and wantonness. There are genuine issues of fact that preclude
summary judgment for her on those counts.

Although Julie Simpson has not moved for

summary judgment, the court will enter a separate order pursuant to Rule 56(f) of the Federal

43

Rules of Civil Procedure giving notice and an opportunity for the parties to explain why partial
summary judgment should not also be granted to defendant Simpson in the same manner as that
granted defendant Dunaway. A separate order will be entered consistent with this memorandum
opinion.
DONE this 12th day of July, 2013.

________________________________
T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE

44