L.L. v. Tuscaloosa City Board of Education et al

Filing 86

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 1/15/13. (KGE, )

FILED
2013 Jan-15 AM 10:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
L.L., a minor child, by and through
her parents and next friends,
LINDA and LEON L.,

)
)
)
)
Plaintiffs,
)
)
vs.
)
)
TUSCALOOSA CITY BOARD OF )
EDUCATION, SUZANNE
)
STERLING, in her individual and
)
official capacities; BECKY INGRAM,
)
in her individual capacity,
)
)
Defendants.
)

7:08-cv-2051-LSC

MEMORANDUM OF OPINION
I. Introduction
Before the Court is Plaintiff L.L.’s motion to alter and amend the summary
judgment this Court entered in favor of the Tuscaloosa County Board of Education,
Suzanne Sterling, and Becky Ingram (collectively the “Defendants”) regarding
Plaintiff’s Title IX, ADA § 504, and § 1983 claims. (Doc. 84.) The Court has reviewed
Plaintiff’s contentions as well as the affidavits Plaintiff believes this Court failed to
consider. For the reasons discussed below, Plaintiff’s motion is due to be denied.

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II. Facts1
Plaintiff L.L. was an eighth grade student at Oak Hill School, which is a
Tuscaloosa City School designated for students with significant disabilities. L.L.
suffers from spina bifida, and as a result is paralyzed from the waist down. She also has
limited mental faculties, coordination, dexterity and strength. While L.L. is verbal, her
voice is weak, so she requires assistance communicating.
On May 7, 2007, L.L.’s science teacher, Defendant Rebecca Ingram, was leading
her class from the lunchroom back to the classroom. At some point between the
lunchroom and Ms. Ingram’s classroom, L.L. was left unattended and was taken to the
bathroom of an empty classroom by M.M., another student at Oak Hill School. M.M.
suffers from mental retardation and chromosome 2 deletion syndrome.
Melissa Mitchell, a teacher at Oak Hill School, returned to her classroom and
discovered M.M. at the door to the bathroom with his hands on his pants and belt. Ms.
Mitchell sent M.M. back to his classroom. Ms. Mitchell then discovered L.L. lying on
the toilet in the bathroom and crying, with her diaper off, her pants around her ankles,
and her shirt pulled up on one side, so that her genitals and breast were exposed. When

1

The facts set out in this opinion are the same facts that were used in the Court’s summary judgment

opinion.
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Ms. Mitchell asked L.L. what happened, L.L. told her M.M. had been messing with
her and pointed to her genital area.
Ms. Mitchell called in a teacher’s aide and moved L.L. into the classroom where
she was examined by the school nurse. M.M. was called into a conference room with
several teachers and administrators, where he indicated via nodding and shaking his
head that he had taken L.L. to the bathroom and either had, or attempted to have, sex
with her.
III. Standard
The decision whether to alter or amend a judgment pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure “is committed to the sound discretion of the
district judge.” American Home Assurance Co. v. Glenn Estess & Associates, Inc., 763
F.2d 1237, 1238 (11th Cir. 1985). Because Plaintiff seeks to alter or amend an order for
summary judgment, the summary judgment standard is applicable to this Court’s
decision.
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party moving for
summary judgment “always bears the initial responsibility of informing the district
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court of the basis for its motion, and identifying those portions of [the evidence] which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by presenting
evidence showing that there is no genuine 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. In
evaluating the arguments of the movant, the court must view the evidence in the light
most favorable to the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
742 (11th Cir. 1996).
Once the moving party has met its burden, Rule 56(e) “requires the nonmoving
party to go beyond the pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate ‘specific facts showing
that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ.
P. 56(e)). “A factual dispute is genuine only if a ‘reasonable jury could return a verdict
for the nonmoving party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d
1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Property, 941
F.2d 1428, 1437 (11th Cir. 1991)).
IV.

Analysis

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As cause for her motion, Plaintiff asserts that a key element of evidentiary proof
of the Defendants’ prior knowledge—the affidavit of M.M.’s mother, H.M. (Doc. 684), and the affidavit of Dr. Ashraf Syed, M.M.’s treating neurologist (Doc. 68-5)—was
not considered by the Court. (Doc. 84 at 2.) Plaintiff argues that the evidence
contained in H.M.’s and Dr. Syed’s affidavits shows a known propensity for sexual
aggression. (Doc. 84 at 6.) In particular, Plaintiff points to H.M.’s statement, “I was
told by school officials and teachers that my son’s conduct was increasingly sexual and
was offensive to other students and staff.” (Doc. 78-1 at 1.) This statement is
consistent with the Teacher Referral Forms (the “Forms”) submitted by the
Defendants. The Forms describe an instance on November 9, 2006, where M.M. made
“several obscene gestures to Mrs. Mitchell when reprimanded or redirected” after he
took off his belt “with the gesture of he was going to use it on [her].” (Doc. 61-12 at
9.) The Forms also describe M.M. being “disruptive in class” and making “obscene
gestures to teachers in the classroom” on November 14, 2006. (Id. at 10.) Also in
November of 2006, M.M. was suspended from the bus for obscene gestures and
statements on the bus. (Id. at 11.) Specifically, M.M. told the bus aide “‘f_ _ _ you’
while pulling on his privates and standing on the bus, telling the aide, ‘s_ _ _ me.’”
(Doc. 68 at 25; Doc. 61-12 at 11.) According to H.M.’s affidavit, Oak Hill School

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officials promised to increase their supervision over M.M. and to work to reduce his
sexual and offensive conduct towards other students and staff. (Doc. 78-1 at 1.)
There is also a notice of suspension dated April 19, 2007 for “vulgar/obscene”
conduct after M.M. was found with another student whose pants had been pulled
down “where you could see her hips.” (Doc. 61-12 at 12-13.) When a teachers’ aid
asked M.M. what he was doing, “he pointed to his private area (genitals).” (Id.) H.M.
states in her affidavit that after this incident, she was told by Ms. Sterling, Ms. Ingram,
and other school officials that M.M. admitted to them that he had pulled the student’s
clothes down and had attempted some sort of sexual contact. (Doc. 78-1 at 2.)
Following this incident, H.M. went to the Stillman Heights Education Center
to discuss her concerns regarding M.M.’s suspension and told the Education Agency
Official that she did not feel M.M. was being supervised properly. As a result, a
meeting was scheduled for the following week. (Doc. 61-12 at 14.) At that meeting,
H.M. explained that M.M.’s medications had been changed to address his behavior
and sexual issues. (Doc. 61-12 at 15.) The conference record indicates that “stop
training” behavior intervention would be implemented and that “when IEP
reconvenes behavior intervention should be addressed to include consequences to
inappropriate sexual activity.” (Id.)

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According to Dr. Syed’s affidavit, “Aggressive behavior, like that noted in
M.M., typically develops into sexual aggression as the subject ages and experiences
increases in hormonal activity, as is the case with M.M.” (Doc. 68-5 at 1.) Dr. Syed
also states that two months before M.M.’s attack on L.L., H.M. reported that M.M.
was having problems with sexual aggression in school. (Id.) As a result, Dr. Syed
recommended an aide be assigned to him to prevent any inappropriate or indecent
behaviors.2 (Id.) Dr. Syed next saw M.M. on April 24, 2007, after he was found in the
hallway with the student whose pants were pulled down. (Doc. 68-5 at 2.) Dr. Syed
characterized this incident as a “continued instance[] of sexual aggression and a
specific instance of such sexual aggression towards another female student at Oak Hill
School.” (Id.) Dr. Syed again recommended that M.M. “needs an aide to monitor his
actions.” (Id.) Dr. Syed saw M.M. again after his attack on L.L., and it was not until
that point that Dr. Syed was contacted by Oak Hill to provide any information and
assist in developing a plan for M.M. (Doc. 68-5 at 2.)
Plaintiff argues that these submissions reveal the Defendants’ prior knowledge
of M.M.’s propensity for sexual aggression and that the Defendants were already
required to provide “one on one” supervision of M.M. prior to his attack on L.L.
2

The affidavit does not reference to whom Dr. Syed made this recommendation. Because he later
says he was not contacted by the school until after May 7, 2007, it is assumed that this recommendation was
made to H.M., and not to personnel at Oak Hill.
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(Doc. 84 at 2, 4.) Although Plaintiff is correct that these affidavits were not specifically
addressed in the previous Memorandum of Opinion, filed on March 28, 2012, the
Court did consider the information therein. (Doc. 82.) However, upon Plaintiff’s
motion, the Court will reconsider its judgment as to portions of the Defendants’
motion for summary judgment with specific reference to the evidence Plaintiff now
contends was not considered.
A.

Title IX Analaysis

Title IX states that “[n]o person . . . shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.” 20 U.S.C. §
1681(a). “Although Title IX does not expressly permit private enforcement suits, the
Supreme Court has found an implied private right of action for individuals to enforce
the mandates of Title IX” and “that private individuals can obtain monetary
damages” under Title IX. Williams v. Bd. of Regents, 477 F.3d 1282, 1293 (11th Cir.
2007). In the school context, sexual harassment is discrimination under Title IX, and
a plaintiff may be able to recover for student-on-student harassment in certain narrow
circumstances. Id. In assessing a Title IX claim based on student-on-student
harassment, the Court “must ask two questions: (1) was the school board deliberately
indifferent to sexual harassment about which it had actual knowledge; and (2) was the
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sexual harassment so severe, pervasive, and objectively offensive that it can be said to
have systemically deprived the victims of access to the educational opportunities of
the school?” Hawkins v. Sarasota County School Bd., 322 F.3d 1279, 1285 (11th Cir.
2003).
1.

Actual Knowledge

In order for a plaintiff to recover for a violation of Title IX based on student-onstudent harassment, “an ‘appropriate person’ must have actual knowledge of the
discrimination or harassment the plaintiff alleges occured.” Williams, 477 F.3d at 1293.
“‘[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. (quoting
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). In Williams, an
appropriate person was found to have actual knowledge when the student responsible
for a student-on-student attack was recruited and given a full scholarship to play
basketball by the President and Athletic Director of the University of Georgia, they
knew that he had been dismissed from two other basketball programs for sexual
harassment and sexual assault, and they had authority to take corrective measures on
behalf of the University of Georgia to end the alleged discrimination. Id. 477 F.3d at
1282. In Doe v. School Bd. of Broward County, Fla., 604 F.3d 1248 (11th Cir. 2010), an
appropriate person was found to have actual knowledge when a high school math
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teacher was twice reported to the school’s principal by students for sexual harassment
before his attack on the plaintiff, and the principal could institute corrective measures
in response to known harassment. 604 F.3d at 1248, 55.
In this case, the affidavits show that both H.M. and Dr. Syed were aware of
M.M.’s sexual aggression, and that H.M. had been in contact with Oak Hill about
M.M.’s behavior problems. Dr. Syed’s knowledge of M.M.’s behavioral problems and
his recommendation that M.M. receive one-on-one supervision is not relevant to Oak
Hill’s knowledge of M.M.’s propensity for sexual assault because Dr. Syed’s
recommendation was never communicated to school officials.
However, M.M. reportedly admitting to an attempted sexual act on another
student is relevant to Oak Hill’s knowledge. (Doc. 78-1 at 2.) In Doe, the court stated
that “[t]he simple fact that [the] prior incidents [of sexual harassment] were
unconfirmed and did not escalate to a violent sexual assault akin to Doe's cannot as a
matter of law absolve the School Board of Title IX liability.” 604 F.3d at 1259.
Further, “lesser harassment may still provide actual notice of sexually violent conduct,
for it is the risk of such conduct that the Title IX recipient has the duty to deter.” Id.
Although M.M.’s previous conduct was unconfirmed and may not have escalated to
an actual sexual assault, the attempt on the other student could be sufficient to provide
notice to the school of M.M.’s propensity for sexual assault. Additionally, H.M.’s
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affidavit may be sufficient for summary judgment purposes to show that an appropriate
person had notice of M.M.’s propensity for sexual assault. Thus, the Defendants may
have had the actual knowledge required for damages under Title IX, contrary to this
Court’s original determination. However, this is not the end of the Court’s inquiry.
2.

Deliberate Indifference

As noted in this Court’s previous opinion, a Title IX claim requires not only that
the school have knowledge, but also that the Board was deliberately indifferent to that
knowledge. A plaintiff can show deliberate indifference by “present[ing] some
evidence that the municipality knew of a need to . . . supervise in a particular area and
the municipality made a deliberate choice not to take any action.” Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). The United States Supreme Court has
held that “the deliberate indifference must, at a minimum, cause students to undergo
harassment or make them liable or vulnerable to it.”Davis v. Monroe Co. Bd. of Educ.,
526 U.S. 629, 645 (1999) (internal quotations omitted). This “does not mean that
recipients can avoid liability only by purging their schools of actionable peer
harassment or that administrators must engage in particular disciplinary action.” Id.
at 648. Rather, the deliberate indifference standard requires “an official decision by
the recipient [of federal funds] not to remedy the violation.” Gebser, 524 U.S. at 290.

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In Davis, the Supreme Court found that the deliberate indifference may exist
where the defendants had actual notice of possible harassment, but “made no effort
whatsoever either to investigate or to put an end to the harassment.” 526 U.S. at 654.
In Sauls v. Pierce County Sch. Dist., 399 F.3d 1279 (11th Cir. 2005), a case involving a
Title IX claim based on teacher-on-student harassment, the Eleventh Circuit found
deliberate indifference could not exist where the defendants responded to each report
of misconduct they received. Id. at 1285 (no deliberate indifference because defendants
“responded to the reports in October 1998, March 2001, and July 2001 by
investigating the allegations and interviewing the relevant parties. School officials also
consistently monitored [the assailant’s] conduct and warned her about her interaction
with students”).
In this case, Oak Hill personnel responded to M.M.’s misconduct prior to the
incident with L.L. by temporarily suspending M.M.’s privileges, suspending him from
school, and holding parent-teacher conferences with his mother. For the incident on
the bus, M.M. was suspended from bus privileges for three weeks. (Doc. 61-4 at 3.)
After the incident with the student in the hallway, M.M. was suspended for one day
and a parent-teacher conference was held with M.M. and H.M. to address M.M.’s
behavior. (Id. at 4.) The Defendants’ responses are similar to the defendants’
responses in Sauls, where the Eleventh Circuit found that deliberate indifference could
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not exist. 399 F.3d at 1285. Although the responses were ultimately ineffective in
preventing the attack on L.L., it cannot be said that the Defendants were deliberately
indifferent because they did not make a deliberate choice not to take any action. See
Davis, 526 U.S. at 654. As this Court concluded in its previous opinion, it cannot be
said that the Defendants were deliberately indifferent.
3.

Denial of Access

Finally, in order for a plaintiff to recover for a violation of Title IX based on
student-on-student harassment “the discrimination must be ‘so severe, pervasive, and
objectively offensive that it effectively bars the victim’s access to an educational
opportunity or benefit.’” Williams, 477 F.3d at 1293 (quoting Davis, 526 U.S. at 633).
In Williams, the Eleventh Circuit found that a sexual assault effectively barred the
victim’s access to an educational opportunity or benefit because the school waited
eight months after the attack before conducting a disciplinary hearing to determine
whether to sanction the alleged assailants. Id. at 1298–99. When faced with the
decision to leave or return to school, the school’s “response to her complaints did
nothing to assuage her concerns of a future attack should she return.” Id. at 1298. The
failure of the school to act after the attack likely prevented the victim from returning
to the university to continue her education. Id. at 1299.

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In this case, Oak Hill school officials immediately investigated the incident,
notified law enforcement, and contacted L.L.’s parents. (Doc. 61 D-404.) M.M. was
temporarily placed in the “homebound educational services” until a behavioral
specialist was called in to reassess M.M.’s Behavior Intervention Plan. As a result of
a meeting with the behavioral specialist, it was decided that M.M. would have a oneon-one aide to accompany him during school hours. (Doc. 61-9 at 68.) This is
undeniably different than the situation in Williams, where the school did nothing to
deter future attacks, preventing the victim from returning to school, thus depriving her
of access to educational opportunities. The facts alleged in the affidavits occurred
before M.M.’s attack on L.L. and were the subject of efforts by Oak Hill officials to
deal with the situation. Plaintiff cannot show that the school’s actions effectively
barred L.L. from access to an educational opportunity or benefit.
B.

Intentional Discrimination Violating ADA or § 504

Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a). In order to sustain a claim under § 504, a plaintiff
must demonstrate that the defendants’ actions were the result of intentional
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discrimination on the part of the defendants. Wood v. President and Trustees of Spring
Hill College in City of Mobile, 978 F.2d 1214, 1219 (11th Cir. 1992). At the time of this
Court’s original opinion, the Eleventh Circuit had “not decided whether to evaluate
claims of intentional discrimination under section 504 under a standard of deliberate
indifference or a more stringent standard of discriminatory animus.” T.W. ex rel.
Wilson v. Sch. Bd. of Seminole Cnty., Fla., 610 F.3d 588, 604 (11th Cir. 2010). Since
then, the Eleventh Circuit has clarified that “a plaintiff my demonstrate
discriminatory intent through a showing of deliberate indifference.” Liese v. Indian
River County Hosp. Dist., 701 F.3d 334, 345–48 (11th Cir. 2012) (“The deliberate
indifference standard best reflects the purposes of § 504 while unambiguously
providing the notice-and-opportunity requirements of Spending Clause legislation. A
lower standard would fail to provide the notice-and-opportunity requirements to
[Rehabilitation Act] defendants, while a higher standard—requiring discriminatory
animus—would run counter to congressional intent as it would inhibit § 504’s ability
to reach knowing discrimination in the absence of animus.”)
The deliberate indifference standard requires a plaintiff to “prove that the
defendant knew that harm to a federally protected right was substantially likely and
that the defendant failed to act on that likelihood.” T.W., 610 F.3d at 604. As
previously explained, although the Defendants’ response to M.M.’s prior misconduct
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was ultimately ineffective in preventing the attack on L.L., it cannot be said that the
Defendants were deliberately indifferent because they did not make a deliberate choice
not to take any action. See supra Part IV.A.2. Because it cannot be said that the
Defendants were deliberately indifferent, Plaintiff cannot meet all the necessary
elements of a § 504 claim. Therefore, summary judgment was properly granted as to
Plaintiff’s § 504 claim.
C.

Liability Under § 1983

Plaintiff brings a § 1983 claim against the Defendants, alleging that her
Substantive Due Process rights of the Fourteenth Amendment were violated when the
Defendants were deliberately indifferent to the protection of her liberty interest in her
bodily integrity. Section 1983 provides that “[e]very person who, under color of any
[law] of any State . . . , subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities 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.” 42 U.S.C. § 1983. Stated another way,
§ 1983 allows a plaintiff to sue an individual who, while acting under color of state law,
deprived her of a constitutional right. Collier v. Dickinson, 477 F.3d 1306, 1307 (11th
Cir. 2007). Municipalities and other local government units are “persons” within the
meaning of § 1983, and can be sued directly under the statute for monetary,
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declaratory, or injunctive relief. Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 690 (1978). In order “to impose § 1983 liability on a municipality,
a plaintiff must show that: (1) his constitutional rights were violated; (2) the
municipality had a custom or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom caused the violation.” McDowell
v. Brown, 392 F.3d 1283, 1289 (11th Cir.2004) (citing City of Canton v. Harris, 489 U.S.
378, 388 (1989)). In reconsidering its prior decision, the Court remains convinced that
Plaintiff cannot show that Oak Hill had a custom or policy that constituted deliberate
indifference to her constitutional rights.
1.

Substantive Due Process Violation

The Fourteenth Amendment prohibits States and their components from
“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Substantive Due Process protects individual liberty against
certain government actions, irrespective of the procedural fairness used to implement
them. See Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). “[T]he Due
Process Clause was intended to prevent government officials from abusing their
power, or employing it as an instrument of oppression.” County of Sacramento v. Lewis,
523 U.S. 833, 846 (1998). However, as a general rule, “nothing in the language of the
Due Process Clause itself requires the State to protect life, liberty, and property of its
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citizens against invasion by private actors.” DeShaney v. Winnebago County Dep't of
Soc. Servs., 489 U.S. 189, 195 (1989). “The Due Process Clause exerts limitations on
a State’s power to act, not as a guarantee of certain minimum levels of safety.” Id. at
195. Only in certain limited circumstances does the Constitution require affirmative
duties of care and protection to particular individuals. Id. at 198.
As originally defined by the Supreme Court, those circumstances exist where
(1) the State takes a person into custody, confining him against his will; and (2) when
the State creates the danger or renders a person more vulnerable to an existing danger.
Id. at 198-201. The Eleventh Circuit has recognized that the Supreme Court has
superceded the latter “state-created danger” category. Now, the government’s
affirmative acts “rise to the level of a substantive due process violation [when] the act
can be characterized as arbitrary or conscience shocking in a constitutional sense.”
Waddell v. Hendry County Sheriff’s Office, 329 F.3d 1300, 1305 (11th Cir. 2003) (citing
Collins, 503 U.S. at 128). L.L. may have only succeeded in her Substantive Due
Process Clause claim if she could have shown that the Board owed her a duty to
protect her from a third-party actor because one of these limited circumstances
existed.
i.

Duty owed because the State takes a person into custody

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Mere compulsory attendance at a public school does not give rise to a
constitutional duty of protection under the Due Process Clause under the custodial
exception outlined in DeShaney because public schools generally lack the requisite
control over children to impose such a duty of care upon these institutions. Wyke v.
Polk County School Board, 129 F.3d 560, 569 (11th Cir. 1997). The Plaintiff has not
alleged that L.L.’s situation was different from that of any other child attending public
school such that it would trigger the custody exception. In a factually similar, but nonbinding case, a special education student was sexually assaulted by another pupil on a
special education school bus. Worthington v. Elmore County Bd. of Ed., 160 Fed. Appx.
877 (11th Cir. 2005). The court held that there was no special relationship or duty on
the part of the Board of Education, even though Plaintiff was forced to attend a special
school for children with learning disabilities and behavioral problems, forced to ride
the bus, and suffered from known mental, emotional, and behavioral disabilities. Id. at
881. Similarly, despite L.L.’s disabilities, no constitutional duty of protection was
created under the custody exception in this case.
ii.

Duty owed because the State creates the danger

Under the second exception, if the conduct of the governmental actor “shocks
the conscience,” a constitutional violation may be present. The government’s
affirmative acts “rise to the level of a substantive due process violation [when] the act
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can be characterized as arbitrary or conscience shocking in a constitutional sense.”
Waddell, 329 at 1305 (citing Collins, 503 U.S. at 128). “To rise to the
conscience-shocking level, conduct most likely must be ‘intended to injure in some
way unjustifiable by any government interest.’” Davis v. Carter, 555 F.3d 979, 982
(11th Cir. 2009) (quoting Lewis, 523 U.S. at 849). Conduct by a government actor that
would amount to an intentional tort under state law would not, without more, rise to
the level of a constitutional violation. See Dacosta v. Nwachukwa, 304 F.3d 1045, 1048
(11th Cir. 2002). “[O]nly the most egregious official conduct can be said to be
arbitrary in the constitutional sense.” Waddell, 329 F.3d at 1305 (citing Lewis).
As noted in the Court’s previous opinion, there are very few cases in the
Eleventh Circuit in which the circumstances actually give rise to a constitutional
violation. Only in the limited context of due-process claims based on excessive
corporal punishment has the court held that the intentional conduct of a school
educator may shock the conscience. See Neal ex rel. Neal v. Fulton County Bd. of Ed.,
229 F.3d 1069 (11th Cir. 2000) (high school coach intentionally struck a student with
a metal weight lock, knocking the student’s eye out of its socket, as a form of
punishment for his involvement in a fight with another student); Kirkland v. Greene
County Bd. of Ed., 347 F.3d 903 (11th Cir. 2003) (high school principal violated a

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student’s constitutional rights after he struck the student with a metal cane in the
head, ribs, and back for disciplinary reasons).
The Plaintiff has alleged that the Defendants knew of M.M.’s history of
misconduct based on the affidavit of H.M., but were deliberately indifferent to the
safety of L.L. and their own duties to protect her. (Doc. 68 at 43; Doc. 84 at 5–7.) This
argument fails for two reasons. First, as noted above, the Defendants were not
deliberately indifferent. See supra Part IV.A.2. Second, even if they were deliberately
indifferent, the Eleventh Circuit “has been explicit in stating that ‘deliberate
indifference’ is insufficient to constitute a due-process violation in a non-custodial
setting.” Nix v. Franklin County Sch. Dist., 311 F.3d 1373, 1377 (11th Cir. 2002) (finding
high school teacher’s actions were not conscience-shocking, where student death
resulted from student touching a live wire after the teacher instructed his students to
hold on to the wire, informed his students they might die if they touched the exposed
part of the wire, then turned away to answer a question). The Court is not convinced
that it was wrong when it found “no precedent to support the contention that a
government agent’s failure to protect from the intentional acts of a third party can be
characterized as arbitrary or conscience shocking in a constitutional sense.” (Doc. 82
at 21.) Further, the Court remains convinced that factually-similar cases it noted in the
previous opinion from other circuits correctly applied the law. Those
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cases—addressing whether sexual assaults on school children can give rise to a § 1983
claim against a government agent under the “state-created danger”
category—generally found that the school district does not have a duty to protect
students from assault. See Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir.
1993) (finding no duty to protect a mentally retarded high school student from sexual
assault and rape from another student with a history of sexual aggression towards other
students because, under DeShaney, it is the State’s affirmative act of restraining the
individual's freedom to act on his own behalf, not the individual’s own
limitations—such as the plaintiff’s mental retardation—that gives rise to the
constitutional duty to protect); Doe v. Hillsboro Independent School Dist., 113 F.3d 1412
(5th Cir. 1997) (finding no duty of school officials to protect a middle school student
who was raped by a school custodian who had a known criminal record); see also Doe
v. Sabine Parish School Bd., 24 F. Supp. 2d 655 (W.D. La. 1998) (finding no duty on the
part of school officials to protect a kindergarten student from sexual assault from
another student with a history of sexual aggression towards other students).
Accordingly, Plaintiff cannot establish that she falls within the narrow
exceptions to the general rule that the State does not owe a duty to protect the life,
liberty, and property of its citizens against invasion by private actors. Because the
Defendants are state actors that did not have a duty to protect Plaintiff from the
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actions of M.M., Plaintiff cannot show that her Substantive Due Process rights were
violated, and the Court was correct in granting the Board’s motion for summary
judgment as to Plaintiff's § 1983 claims.
2.

Custom or Policy

Even if Plaintiff could show that her constitutional rights were violated, she
cannot show that there was a custom or policy that constituted deliberate indifference
to her Substantive Due Process rights. A local government body is liable under § 1983
“when execution of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury . . . .” Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). “A plaintiff
can establish § 1983 liability by identifying that she has been deprived of constitutional
rights by either an express policy or a ‘widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled
as to constitute a custom and usage with the force of law.’” Cuesta v. School Bd. of
Miami-Dade County, Fla., 285 F.3d 962, 966 (11th Cir. 2002) (quoting Brown v. City
of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991)).
Plaintiff argued that “The Board’s failures adequately to train its employees in
the prevention of this type of injury and to have adequate safeguards and responsive
policies to sexual harassment and assault at Oak Hill School are the types of
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substantive due process claims for which municipal entities may be liable.” (Doc. 68
at 43.) Plaintiff cited Canton v. Harris, 489 U.S. 378, 387 (1989) in support of this
assertion. In Canton, the Court stated that “if a concededly valid policy is
unconstitutionally applied by a municipal employee, the city is liable if the employee
has not been adequately trained and the constitutional wrong has been caused by that
failure to train.” Id. However, the Court also cautions that the “failure to train” can
only be the basis of liability under §1983 in very limited circumstances, where the
failure to train amounts to deliberate indifference. Id. As discussed above, the
Defendants were not deliberately indifferent to L.L.’s constitutional rights. See supra
Part IV.A.2.
Because Plaintiff failed to establish that there was a custom or policy that
constituted deliberate indifference to her Substantive Due Process rights, the Board’s
motion for summary judgment as to Plaintiff’s § 1983 claim was properly granted.
D.

Qualified Immunity

The Court also remains convinced that—even if liability under § 1983 did exist
in this case—Defendants Suzanne Sterling and Rebecca Ingram are entitled to
summary judgment based on qualified immunity. “Qualified immunity offers complete
protection for individual public officials performing discretionary functions ‘insofar
as their conduct does not violate clearly established statutory or constitutional rights
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of which a reasonable person would have known.’” Sherrod v. Johnson, 667 F.3d 1359,
1363 (11th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
Eleventh Circuit engages in a two-part analysis to determine whether a government
official is entitled to the defense of qualified immunity. “First, the official must prove
that the allegedly unconstitutional conduct occurred while he was acting within the
scope of his discretionary authority. Second, if the official meets that burden, the
plaintiff must prove that the official’s conduct violated clearly established law.”
Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998) (citations omitted).
1.

Acting Within the Scope of Discretionary Authority

Plaintiff has not challenged the determination that Sterling and Ingram were
acting within the scope of their discretionary authority, but the Court will nonetheless
reconsider this determination. A government employee is acting within the scope of
discretionary authority when the acts in question “are of a type that fell within the
employee’s job responsibilities.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,
1265 (11th Cir. 2004). Acts fall within the government employee’s job responsibilities
when he is “(a) performing a legitimate job-related function (that is, pursuing a
job-related goal), (b) through means that were within his power to utilize.” Id. The
inquiry is not whether it was within the defendant’s authority to commit the allegedly
improper act. Harbert Int’l, 157 F.3d at 1282. Instead, “a court must ask whether the
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act complained of, if done for a proper purpose, would be within, or reasonably related
to, the outer perimeter of an official’s discretionary duties,” which “should be
determined by the relation of the injury complained of to the duties entrusted to the
officer.” Id.
As this Court previously found, “the assault occurred when school personnel
left L.L. and M.M. unattended at some point while leading L.L.’s class from the
lunchroom back to the classroom. Formation and implementation of procedures for
supervising students are within Defendants’ discretionary duties, even if Defendants
did not do all that was required of them in carrying out those duties. Therefore,
Defendants meet the first prong for qualified immunity.” (Doc. 82 at 26.) This
analysis is unrelated to the evidence Plaintiff contends was not included in the
previous opinion, and the Court remains convinced that the law was correctly applied
regarding the first prong of qualified immunity.
2.

Conduct Violated Clearly Established Law

Once the public official proves “that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred,” Lee v. Ferraro, 284
F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks omitted), “the burden shifts
to the plaintiffs to show that qualified immunity is inappropriate,” Terrell v. Smith, 668
F.3d 1244, 1250 (11th Cir. 2012). The Eleventh Circuit mandates a two-part test to
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ascertain whether such an allegation has been sufficiently made. First, the Court must
determine whether the plaintiff’s allegations, if true, establish a constitutional
violation. Vinyard v. Wilson, 311 F.3d at 1346 (11th Cir. 2002) (citing Hope v. Pelzer,
536 U.S. 730, 735 (2002)). Second, “[i]f a constitutional right would have been
violated under the plaintiff’s version of the facts, ‘the next, sequential step is to ask
whether the right was clearly established.’” Vinyard, 311 F.3d at 1346 (quoting Saucier
v. Katz, 533 U.S. 194, 201 (2001)).
As an initial matter, Plaintiff cannot establish that her constitutional rights were
violated by the Defendants under her version of the facts. See supra Part IV.C.1.
However, even if she could, the Court was correct in determining that any such
constitutional right was not clearly established. A public official will be denied
qualified immunity only if the plaintiff convinces the Court that the constitutional
right at issue was clearly established at the time of the alleged violation to the degree
that these defendants had “fair warning” that their conduct violated the plaintiff’s
constitutional rights. See Willingham v. Loughnan, 321 F.3d 1299, 1301 (11th Cir.
2003). “In many—if not most—instances, the apparency of an unlawful action will
be established by (if it can be established at all) preexisting caselaw which is sufficiently
similar in facts to the facts confronting an officer, such that we can say every
objectively reasonable officer would have been on ‘fair notice’ that the behavior
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violated a constitutional right.” Id. In addition, “[g]eneral statements of the law
contained within the Constitution, statute, or caselaw may sometimes provide ‘fair
warning’ of unlawful conduct.” Id.
Plaintiff alleges Ingram and Sterling “were aware of their duty to monitor L.L.
at all times, and to protect her from injury by other students.” (Doc. 1 at 10.)
However, as this Court originally noted, this is not a statement of law contained within
the Constitution, statute, or caselaw. As noted above, the Eleventh Circuit has held
that public schools generally do not have the requisite level of control over children
to give rise to a constitutional duty to protect them from third-party actors. See supra
Part IV.C.1.i. See also Wyke, 129 F.3d at 569. In Williams v. Bd. of Regents, the court
held that the defendants were entitled to qualified immunity, despite the allegation
that they knew the past criminal and disciplinary history of plaintiff’s attacker, and yet
recruited him to play basketball anyway. 477 F.3d at 1301. The court found that, at a
minimum, the defendants acted recklessly, and because the plaintiff failed to present
any cases that show the defendants violated her clearly established equal protection
rights by recruiting and admitting an individual like the attacker, she could not meet
her burden under the second step of the qualified immunity analysis. Id. As in
Williams, Plaintiff did not originally put forth any cases that show the Defendants

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violated her clearly established equal protection rights, and she has subsequently not
provided any such cases either.
Because the Defendants were acting within the scope of their duties and Plaintiff
cannot meet her burden of proof to show that qualified immunity is inappropriate,
Defendants Sterling and Ingram remain entitled to qualified immunity as to Plaintiff’s
§ 1983 claim against them in their individual capacities.
E.

State Law Claims

Once again, because there are no federal law claims remaining, the Court may
decline to exercise supplemental jurisdiction over Plaintiff’s state law claims pursuant
to 28 U.S.C. § 1367(c)(3). In accordance with the Eleventh Circuit’s desire that
district courts dismiss any remaining state claims when, as here, the federal claims
have been dismissed prior to trial, Raney v. Allstate Ins. Co. 370 F.3d 1086, 1089 (11th
Cir. 2004), this Court exercised its discretion and declined supplemental jurisdiction
over the claims in counts 4, 5, 6, and 7 of the Complaint. (Doc. 82 at 29.) Because the
remaining claims involve issues that will be resolved solely in accordance with state
law, the Court finds no reason to alter its previous judgment.
V. Conclusion
For the reasons stated above, Plaintiff’s motion to alter and amend the judgment
is due to be denied. A separate order will be entered.
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Done this 15th day of January 2013.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
171032

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