Jane Doe #1 et al v. Boulder Valley School District No. RE-2 et al

Filing 58

ORDER granting in part and denying in part 44 Motion to Dismiss Amended Complaint. Claims One, Three, Four, Five, and Six are dismissed. Claim Seven will be dismissed as to all defendants other than defendant Matt Schmidt. Defendants Boulder Valley School District No. Re-2, Superintendent Chris King, Principal Ginger Ramsey, Assistant Principal Mike Lowe, Mark Schmidt, Jason Waneka, and Jasmine Masse are dismissed from this case. By Judge Philip A. Brimmer on 9/25/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02107-PAB-KLM
JANE DOE # 1,
JANE DOE # 2, and
JANE DOE # 3,
Plaintiffs,
v.
BOULDER VALLEY SCHOOL DISTRICT NO. RE-2,
TRAVIS JON MASSE,
SUPERINTENDENT CHRIS KING,
PRINCIPAL GINGER RAMSEY,
ASSISTANT PRINCIPAL AND ATHLETIC DIRECTOR MIKE LOWE,
MARK SCHMIDT,
MATT SCHMIDT,
JASON WANEKA, and
JASMINE MASSE,
Defendants.

ORDER

This matter is before the Court on the Motion to Dismiss [Docket No. 44] filed by
defendants Boulder Valley School District No. Re-2 (“School District”), Superintendent
Chris King, Principal Ginger Ramsey, Assistant Principal and Athletic Director Mike
Lowe, Mark Schmidt, Matt Schmidt, Jason Waneka, and Jasmine Masse. The motion
is fully briefed and ripe for disposition.
I. BACKGROUND
This case arises out of Travis Jon Masse’s unlawful sexual conduct with students
under the age of eighteen at Broomfield High School (“Broomfield High”) located in

Broomfield, Colorado. The plaintiffs are three victims of Mr. Masse. In their amended
complaint, plaintiffs assert a claim against the School District for unlawful gender
discrimination in violation of Title IX of the Educational Amendments of 1972, 20 U.S.C.
§ 1681 et seq., and sexual harassment in violation of the Fourteenth Amendment’s
Equal Protection Clause. Docket No. 41 at 18-26. Pursuant to 42 U.S.C. § 1983,
plaintiffs also assert claims against defendants Superintendent King, Principal Ramsey,
Assistant Principal Lowe, Mark Schmidt, Matt Schmidt, Mr. Waneka, and Ms. Masse for
violations of the Fourteenth Amendment’s Equal Protection Clause.1 Id. Finally,
plaintiffs allege claims against the individual defendants for failure to report child abuse
in violation of the Colorado Child Protection Action of 1987, Colo. Rev. Stat. § 19-3-301
et seq.
Plaintiffs allege the following facts in support of these claims: In 2001, Mr. Masse
was a student at the University of Colorado studying to become a licensed teacher. As
part of his curriculum, Mr. Masse had to participate in a field placement program
wherein he observed classroom instruction. To fulfill this requirement, Mr. Masse
performed a field placement at Monarch High School (“Monarch High”), another Boulder
Valley School District high school, and was assigned to a classroom taught by Deann
Bucher. While enrolled in the field placement program at Monarch High, Mr. Masse

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Superintendent King was the final policymaker for the Boulder Valley School
District. Docket No. 41 at 4, ¶ 10. Principal Ramsey and Assistant Principal Lowe were
the two highest ranking school officials at Broomfield High. Id. at ¶¶ 11-12. Matt
Schmidt was a security guard employed by Broomfield High. Id. at 5, ¶ 14. Jasmine
Masse was a Broomfield High teacher and was Mr. Masse’s wife during the relevant
period. Id. at ¶ 16. Mark Schmidt and Jason Waneka were assistant wrestling coaches
at Broomfield High. Id. at ¶¶ 13,15.
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also volunteered at Broomfield High as a wrestling coach under the tutelage of Mark
Schmidt, who was the head wrestling coach at Broomfield High at the time.
Shortly after Mr. Masse began his field placement at Monarch High, Ms. Bucher
expressed concern about Mr. Masse’s inappropriate interactions with female students.
Specifically, Mr. Masse asked a female student for her telephone number within a few
weeks of his placement. After obtaining the number, Mr. Masse placed several
“unsolicited and/or unwelcome” calls to her house. Docket No. 41 at 6, ¶ 19. Plaintiffs
allege that Mr. Masse’s telephone calls made the female student uncomfortable and, as
a result, the student requested to be excused from her classes if Mr. Masse was in
attendance.
Based on the female student’s complaints, Bill Johnson, the principal at Monarch
High, terminated Mr. Masse and permanently banned him from the school premises.
Plaintiffs allege that Mr. Masse’s improper conduct with the female student at Monarch
High was noted in the School District’s personnel files. Docket No. 41 at 7, ¶ 24. Mr.
Johnson also informed Mark Schmidt about the allegations surrounding Mr. Masse.
Despite Mr. Johnson’s communication, Mark Schmidt allowed Mr. Masse to continue
his involvement with the Broomfield High wrestling program.
Once Mr. Masse graduated from the University of Colorado, he was hired by
Broomfield High as a part-time teacher and assistant wrestling coach. Eventually, Mr.
Masse was promoted to a full-time teacher. Plaintiffs allege that, in his position as a
teacher, Mr. Masse made inappropriate sexual comments to his female students and it
was “common knowledge” that he attempted to pursue sexual relations with female
students at Broomfield High. Docket No. 41 at 9, ¶¶ 30-31.
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In addition to the full-time teaching position, Mr. Masse also became the head
coach of the Broomfield High wrestling team. Mr. Masse’s assistants in the program
included Mark Schmidt, the former head coach, and Jason Waneka. As the head
coach, Mr. Masse had the right to select team managers to help with the wrestling
program. The team managers were students from Broomfield High whose primary
duties were to keep score at tournaments, clean the wrestling mats, and take care of
the training equipment. Mr. Masse typically selected female managers and brought
them to out-of-district and out-of-state wrestling tournaments, which plaintiffs allege was
unusual and contrary to the practices of other high school wrestling programs. Id. at
¶ 33.
Jane Doe #1 was a student at Broomfield High between 2006 and 2009. Mr.
Masse gave Jane Doe #1 a position as a team manager in 2006 and his inappropriate
interactions with her began a year later. Id. at 10-11, ¶ 39. In late December 2007, Mr.
Masse sent Jane Doe #1 several text messages. Id. The text messages were related
to wrestling topics at first; however, they soon turned to sexual topics. Id. at 11, ¶ 40.
In the months following December 2007, Mr. Masse continued sending text messages
to Jane Doe #1, which reached the point where the pair sent each other text messages
on a daily basis. Plaintiffs allege that the interactions between Mr. Masse and Jane
Doe #1 raised suspicion among the students at Broomfield High because Mr. Masse
was sometimes seen alone in his office with Jane Doe #1. Id. at 9, ¶ 32.
Over the course of 2008 and 2009, Mr. Masse taught two classes in which Jane
Doe #1 was a student. At some point during the school year, Jane Doe #1 sent Mr.

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Masse a nude photograph of herself, id. at 12, ¶ 44, and soon thereafter Mr. Masse
began engaging in unlawful sexual contact with Jane Doe #1. Mr. Masse first had
unlawful sexual contact with Jane Doe #1 in November 2008, id. at ¶ 48, and again in
December 2008 when Jane Doe #1 accompanied the wrestling team to a tournament in
Grand Junction, Colorado. Id. at ¶¶ 50-51.
Over the weekend of January 17, 2009, the Broomfield High wrestling team went
to a tournament in Huntington Beach, California. The team stayed at a hotel in
Huntington Beach. Several of the wrestlers’ parents made the trip for the weekend,
including Superintendent King, whose son was a member of the wrestling team. Jane
Doe #1, accompanied by her father, also traveled to Huntington Beach with the
wrestling team. Plaintiffs allege that Mr. Masse, Mark Schmidt, Mr. Waneka, and other
coaches conducted themselves “inappropriately” during the tournament in Huntington
Beach by openly drinking alcohol in front of the students. Id. at 13, ¶ 55.
Superintendent King left the tournament early because his son was eliminated.
Before leaving, he gave the key to his hotel room to Mr. Masse. On the final day of the
tournament, Mr. Masse had sexual contact with Jane Doe #1 both at the tournament
and in Superintendent King’s hotel room. Id. at 14, ¶¶ 57-59. Mr. Masse also engaged
in further unlawful sexual contact with Jane Doe #1 during a wrestling tournament over
the weekend of February 13, 2009.
Jane Doe #2 was a student in Mr. Masse’s U.S. History course. Id. at 15,
¶ 65-66. Mr. Masse sent text messages to Jane Doe #2 that were innocuous at first,
but then slowly turned sexual in nature. Mr. Masse’s text messages made

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inappropriate requests of Jane Doe #2 such as demanding “naked pictures” or that she
perform lewd acts. Id. at 16, ¶¶ 72-73. Mr. Masse did not engage in unlawful sexual
contact with Jane Doe #2.
With respect to Jane Doe #3, Mr. Masse obtained her contact information from
Jane Doe #2. Jane Doe #3 took a course taught by Mark Schmidt and, according to
plaintiffs, Mr. Masse would frequently enter Mr. Schmidt’s classroom to hold
conversations with Jane Doe #3. Mr. Masse began sending Jane Doe #3 inappropriate
and sexually explicit text messages during and after school hours. Id. at 17, ¶ 79. This
eventually led to Mr. Masse engaging in unlawful sexual contact with Jane Doe #3 on
several occasions, with one such incident occurring in the wrestling room at Broomfield
High and another in Mr. Masse’s truck. Id. at 17-18, ¶¶ 82-83.
According to the complaint, Matt Schmidt was aware of Mr. Masse’s unlawful
sexual conduct with the underage students at Broomfield High. Id. at 18, ¶ 84.
Plaintiffs allege that, the day after Mr. Masse was arrested for unlawful conduct with a
minor, Matt Schmidt confronted Jane Doe #3 and instructed her not to tell anyone about
her sexual contact with Mr. Masse. Id. at ¶ 85.
Plaintiffs allege that the defendants knew about the incident at Monarch High
and Mr. Masse’s termination from the field placement program. Id. at 7, ¶ 25.
II. STANDARD OF REVIEW
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial, but to assess whether the plaintiff’s Complaint
alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v.

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Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In so doing,
the Court “must accept all the well-pleaded allegations of the complaint.” Alvarado v.
KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and citation
omitted). At the same time, however, a court need not accept conclusory allegations.
Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).
Generally, “[s]pecific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (omission marks, internal quotation marks, and
citation omitted). The “plausibility” standard requires that relief must plausibly follow
from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales,
534 F.3d 1282, 1286 (10th Cir. 2008).
However, “where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged – but it has not
shown – that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks omitted). Thus, even though
modern rules of pleading are somewhat forgiving, “a complaint still must contain either
direct or inferential allegations respecting all the material elements necessary to sustain
a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (quotation marks
and citation omitted).

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III. ANALYSIS
A. Title IX Claim Against School District
Plaintiffs’ first claim for relief alleges that the School District discriminated against
plaintiffs on the basis of gender in violation of Title IX. Title IX prohibits sex
discrimination in educational programs. 20 U.S.C. § 1681(a). Sexual harassment is a
form of discrimination actionable under the Title IX. Escue v. N. Okla. College, 450
F.3d 1146, 1152 (10th Cir. 2006). Although the statute does not mention a private right
of action, the Supreme Court has held that such a right is implied and entitles the
successful plaintiff to damages. Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76
(1992).
Under Title IX, a school district cannot be held liable on a theory of respondeat
superior for an employee’s violation of the statute. Gebser v. Lago Vista Ind. Sch. Dist.,
524 U.S. 274, 285 (1998). To hold a school district accountable for the actions of its
employees, a plaintiff must show that the school district: “(1) had actual knowledge of,
and (2) was deliberately indifferent to (3) harassment that was so severe, pervasive and
objectively offensive that it (4) deprived the victim of access to the educational benefits
or opportunities provided by the school.” Murrell v. Sch. Dist. No. 1, Denver, Colo., 186
F.3d 1238, 1246 (10th Cir. 1999).
With respect to the first two prongs of this analysis, only if an “appropriate
person” has knowledge of the violations will a school district have notice of such
violations. Id. Although the Tenth Circuit has not provided a bright line rule to
determine who qualifies as an “appropriate person,” it has found that high school

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principals generally qualify. See id. at 1247 (finding that a principal is an appropriate
person because she was the highest-ranking school official); see also Davis v. Monroe
Cnty. Bd. of Educ., 526 U.S. 629, 653 (1999) (discussing the principal’s actual
knowledge of harassment); Gebser, 524 U.S. at 291 (assuming without discussion that
a high school principal was an appropriate person under the statute); Doe v. Sch. Bd. of
Broward Cnty., Fla., 604 F.3d 1248, 1256 (11th Cir. 2010) (finding principal is
“appropriate person”). For purposes of this motion, and as so conceded by defendants,
Docket No. 44 at 4, the Court will consider Superintendent King, Principal Ramsey, and
Assistant Principal Lowe as “appropriate persons” because they are the individuals who
“at a minimum ha[d] authority to address the alleged discrimination and to institute
corrective measures.”2 Gebser, 524 U.S. at 290.
To show that the School District had actual knowledge of Mr. Masse’s sexual
harassment, plaintiffs must show that Superintendent King, Principal Ramsey, or
Assistant Principal Lowe had actual knowledge of Mr. Masse’s actions or that Mr.
Masse posed a substantial risk of abuse to students based on prior complaints. Escue,
450 F.3d at 1154. Plaintiffs do not allege that Superintendent King, Principal Ramsey,
Assistant Principal Lowe, or any other “appropriate person” had actual knowledge of Mr.
Masse’s actions at Broomfield High, so the Court’s inquiry will focus on whether Mr.
Masse posed a substantial risk of abuse. Escue, 450 F.3d at 1154.

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To the extent plaintiffs assert that Mark Schmidt is an “appropriate person” for
Title IX purposes, Docket No. 45 at 8, the Court is not convinced. At the time of Mr.
Masse’s illegal conduct, Mark Schmidt was an assistant wrestling coach and therefore
Mr. Masse’s subordinate. There is no plausible allegation that he had any authority to
address the alleged discrimination and take corrective action.
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Plaintiffs claim that Superintendent King, Principal Ramsey, and Assistant
Principal Lowe knew of the Monarch High incident and Mr. Masse’s termination.
Docket No. 45 at 8. However, this allegation alone is insufficient to alert
Superintendent King, Principal Ramsey, and Assistant Principal Lowe that Mr. Masse
posed a substantial risk of abuse because it was “too dissimilar, too infrequent, and/or
too distant in time” from Mr. Masse’s unlawful actions at Broomfield High. Escue, 450
F.3d at 1153. The Monarch High accusation is dissimilar to Mr. Masse’s sexually
harassing conduct at Broomfield High because plaintiffs do not allege that Mr. Masse’s
phone calls to the female student, while “unsolicited,” “unwelcome,” and the cause of
his termination, were overtly sexual.3 See id. (finding a single incident of inappropriate
touching and a series of inappropriate name calling too dissimilar to pervasive sexual
conduct). Moreover, this is the only specific allegation that Superintendent King,
Principal Ramsey, or Assistant Principal Lowe knew of inappropriate sexual behavior by
Mr. Masse.4 This single complaint is too infrequent to show that Mr. Masse had a
propensity to commit sexual harassment. Id. at 1154 (finding that two episodes did not
provide the school with actual knowledge that a teacher presented a “substantial risk of
abuse”). Finally, because the Monarch High incident occurred six years before Mr.

3

Although the amended complaint does not say so explicitly, it is fairly read to
allege that Mr. Masse’s calls to the student were for an inappropriate romantic purpose.
4

Plaintiffs allege that Mr. Masse’s inappropriate conduct at Broomfield High was
“common knowledge” and “well-known” among the students. Docket No. 41 at 9, ¶ 31.
Despite being conclusory, these allegations do not assert that an “appropriate person”
knew of such conduct. Plaintiffs’ complaint states that the students were suspicious;
however, the complaint does not allege that these students informed their teachers or
reported the information to the principal. As such, it cannot attribute knowledge to
Superintendent King, Principal Ramsey, or Assistant Principal Lowe.
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Masse’s unlawful conduct with Jane Doe #1, it was too distant in time to give adequate
notice to Superintendent King, Principal Ramsey, and Assistant Principal Lowe. Id.
Accordingly, the Court finds that plaintiffs’ complaint does not sufficiently allege that
Superintendent King, Principal Ramsey, and Assistant Principal Lowe had constructive
knowledge that Mr. Masse posed a substantial risk of abuse to students.
Because plaintiffs fail to show that an appropriate person in the School District
had actual knowledge of Mr. Masse’s sexual harassment, the Court need not consider
whether the School District was deliberately indifferent to such information. See Rost v.
Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121 (10th Cir. 2008) (“We need
not respond to Ms. Rost’s argument that the district was deliberately indifferent in its
response to the harassment prior to K.C.’s January 2003 disclosure as we have
concluded that the district had no knowledge of the harassment until January 2003.”).
Accordingly, plaintiffs’ claim for sexual harassment under Title IX against the School
District will be dismissed.
B. 42 U.S.C. § 1983 Claims
Plaintiffs allege that the defendants violated their equal protection rights under
the Fourteenth Amendment to the United States Constitution. The Tenth Circuit has
found that sexual harassment by a state actor can constitute a violation of the equal
protection clause. Murrell, 186 F.3d at 1249 (citing Starrett v. Wadley, 876 F.2d 808,
814 (10th Cir. 1989)). Denials of equal protection by a municipal entity or individuals
acting under color of state law are actionable under 42 U.S.C. § 1983. Because

11

plaintiffs assert several claims pursuant to § 1983, the Court will discuss each claim as
it relates to the individual defendants.
1. Failure to Report and Investigate against Individual Defendants
Plaintiffs’ third claim for relief alleges that the individual defendants were
deliberately indifferent to Mr. Masse’s pattern of sexual misconduct. A government
employee may be held liable under § 1983 upon a showing of deliberate indifference to
known sexual harassment. In order to hold defendants personally liable under § 1983,
plaintiffs must show that: (1) each defendant received notice of a pattern of violations of
plaintiffs’ constitutional right to be free from sexual harassment; (2) each defendant
displayed deliberate indifference to or tacitly authorized the unconstitutional acts; (3)
each defendant failed to take proper remedial steps; and (4) each defendant’s failure to
take proper remedial steps caused plaintiffs’ injury. Gates v. Unified Sch. Dist. No. 449
of Leavenworth Cnty., Kan., 996 F.2d 1035, 1041 (10th Cir. 1993). Moreover, the
Tenth Circuit has held that a co-worker may be liable for sexual harassment under the
Fourteenth Amendment if the co-worker exercised state authority over the plaintiff.
David v. City & Cnty. of Denver, 101 F.3d 1344, 1354 (10th Cir. 1996).
a. Superintendent King, Principal Ramsey, Assistant Principal
Lowe
The Court finds that plaintiffs’ complaint does not sufficiently allege that
Superintendent King, Principal Ramsey, and Assistant Principal Lowe had knowledge of
Mr. Masse’s unlawful conduct. There are no allegations in the complaint that anybody
reported Mr. Masse’s unlawful sexual harassment at Broomfield High to these three
defendants. In addition, as discussed above, the Monarch High incident is insufficient
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to establish notice to these defendants. See Jojola v. Chavez, 55 F.3d 488, 491 (10th
Cir. 1995) (finding four incidents and other rumors of inappropriate sexual behavior
insufficient to state claim that principal had actual knowledge under § 1983 of pattern of
violation of female students’ constitutional right to be free of sexual abuse).
Accordingly, plaintiffs have failed to allege facts to state a § 1983 claim against
Superintendent King, Principal Ramsey, and Assistant Principal Lowe.
b. Mark Schmidt
With respect to Mark Schmidt, the Court finds that the complaint does not allege
sufficient facts to hold Mark Schmidt liable. Plaintiffs allege that Mark Schmidt was the
assistant wrestling coach at Broomfield High. As noted above, the Monarch High
allegation is insufficient to attribute actual knowledge to Mark Schmidt of a pattern of
sexual harassment by Mr. Masse. Id. Plaintiffs’ allegation that Mark Schmidt observed
“inappropriate conduct” by Mr. Masse, Docket No. 41 at 8, ¶ 29, presumably involving
wrestling managers, also fails to establish actual knowledge given plaintiffs’ failure to
explain what the “inappropriate conduct” involved. Similarly, plaintiffs’ allegations that
Mark Schmidt observed Mr. Masse receive text messages says nothing about what, if
anything, Mark Schmidt knew regarding the content of the text messages or who they
were from. Docket No. 41 at 11, ¶ 42. In addition, the fact that Mark Schmidt, Mr.
Waneka, and Mr. Masse drank alcohol in front of students at one tournament does not
plausibly allege that Mark Schmidt had actual knowledge of a pattern of unlawful sexual
conduct by Mr. Masse. Id. at 13, ¶ 55. Finally, the complaint does not allege that Mr.
Masse acted inappropriately when Mr. Masse spoke with Jane Doe #3 in Mark

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Schmidt’s class or that Mark Schmidt even noticed these conversations. Id. at 17, ¶ 80.
Thus, plaintiffs have not plausibly alleged that Mark Schmidt had knowledge of a
pattern of violations of plaintiffs’ constitutional rights by Mr. Masse. Accordingly, the
Court will dismiss plaintiffs’ § 1983 claim against Mark Schmidt.
c. Matt Schmidt
Plaintiffs allege that Matt Schmidt is a security guard at Broomfield High and a
friend of Mr. Masse. Plaintiffs allege that Matt Schmidt was aware of the unlawful
sexual contact between Mr. Masse and Jane Doe #3. Docket No. 41 at 18, ¶ 84.
Plaintiffs further assert that, the day after Mr. Masse was arrested, Matt Schmidt
instructed Jane Doe #3 not to tell anyone about Mr. Masse’s sexual contact with her.
Id. at ¶ 85. These allegations plausibly show that Matt Schmidt was aware of Mr.
Masse’s unlawful sexual contact with Jane Doe #3 and had personal involvement in
that he told her not to report it.
However, plaintiffs fail to allege sufficient facts that Matt Schmidt was a
“supervisor” or “employer” for purposes of establishing “state action,” see Murrell, 186
F.3d at 1250, or that he exercised “state authority” over plaintiffs. David, 101 F.3d at
1354. Plaintiffs do not allege that Matt Schmidt was plaintiffs’ supervisor or employer.
Moreover, plaintiffs do not allege any facts that can plausibly support a claim that he
used his position as a security guard to exercise “state authority” over Jane Doe #3.
Instead, based on the allegations of the complaint, it is more plausible that he told Jane
Doe #3 not to report the sexual contact with Mr. Masse in the capacity of a friend of Mr.
Masse. Thus, the Court will dismiss plaintiffs’ § 1983 claim against Matt Schmidt.

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d. Jason Waneka
Plaintiffs allege that Jason Waneka was an assistant wrestling coach at
Broomfield High. The complaint alleges that Mr. Waneka, like Matt Schmidt, observed
“inappropriate conduct” by Mr. Masse. Docket No. 41 at 8, ¶ 29. As already discussed
in regard to Mark Schmidt, this allegation does not establish actual knowledge. In
addition, the complaint avers that Mr. Waneka saw Mr. Masse send and receive text
messages and drink in front of students at a wrestling tournament. As discussed in
regard to Mark Schmidt, these allegations are insufficient. Accordingly, the Court finds
that plaintiffs’ assertions fail to state a § 1983 claim against Mr. Waneka. Murrell, 186
F.3d at 1250.
e. Jasmine Masse
Plaintiffs allege that Jasmine Masse was a teacher at Broomfield High and the
wife of Mr. Masse. Plaintiffs’ complaint claims that “Defendant Jasmine Masse also
became aware that her husband and fellow teacher, Defendant Masse, was
perpetrating sexual harassment and sexual abuse against underage female students.”
Docket No. 41 at 9, ¶ 34. However, there are no assertions about when or how Ms.
Masse found out about Mr. Masse’s unlawful conduct. Plaintiffs’ allegations in this
regard are wholly conclusory, and the Court is not required to accept them as true.
Bryson, 534 F.3d at 1286 (“a complaint still must contain either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery under
some viable legal theory.”). Moreover, plaintiffs make no attempt to suggest otherwise
in their response. Accordingly, plaintiffs’ § 1983 claim against Ms. Masse is dismissed

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because plaintiffs have not nudged the allegations against her from “conceivable to
plausible.” Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th
Cir. 2008).
2. Failure to Investigate and Report against the School District
Plaintiffs’ fourth claim alleges that the School District was deliberately indifferent
to Mr. Masse’s pattern of sexual misconduct. A school district’s liability for sexual
harassment under the Equal Protection Clause is analyzed under a municipal liability
framework. Murrell, 186 F.3d at 1249-50. To maintain a claim for municipal liability,
plaintiffs must allege that Mr. Masse’s actions were representative of an official policy or
custom of the institution, or taken by an official with final policymaking authority. Id. at
1249.
Plaintiffs do not claim that the School District had an official policy of allowing
employees to sexually harass students or that an official with final policy making
authority was responsible for the sexual harassment at issue here. Instead, plaintiffs
allege that the School District had a custom of failing to investigate and report sexual
harassment in the district. See Docket No. 41 at 21-22. To hold the School District
liable, plaintiffs must allege (1) continuing, widespread, and persistent misconduct by
the state; (2) deliberate indifference to or tacit authorization of the conduct by
policymaking officials after notice of the conduct; and (3) a resulting injury. See Gates,
996 F.2d at 1041. Plaintiffs’ allegations do not satisfy this standard.
As previously discussed, Superintendent King and Principal Ramsey had no
prior knowledge of Mr. Masse’s conduct at Broomfield High. In addition, plaintiffs have

16

not shown widespread or persistent unlawful conduct by School District employees.
Plaintiffs have only alleged that there were rumors among the student body about Mr.
Masse’s relationships with students at Broomfield High. Docket No. 41 at 9, ¶ 31.
Plaintiffs have not alleged that other school district employees were also having
unlawful relationships with students. As such, plaintiffs’ allegations do not show “that
the underlying unconstitutional misconduct was so widespread or flagrant that in the
proper exercise of its official responsibilities [School District officials] should have
known of it.” Thelma D. ex rel. Delores A. v. Bd. of Educ., 934 F.2d 929, 933 (8th Cir.
1991). Plaintiffs’ assertions are insufficient to raise a claim against the School District
for failure to investigate and report. Therefore, plaintiffs’ § 1983 claim for failure to
report and investigate against the School District will be dismissed.
3. Failure to Supervise and Train against Individual Defendants
In their fifth claim, plaintiffs contend that Superintendent King, Principal Ramsey,
Assistant Principal Lowe, and Mark Schmidt are individually liable under § 1983 for
violating plaintiffs’ Fourteenth Amendment right to be free from sexual harassment.
Specifically, plaintiffs allege that the supervisor defendants5 failed to train their
employees or implement policies with respect to the use of electronic technologies
which they knew or should have known were likely to lead to sexual harassment by a
teacher. Docket No. 41 at 22-23.
Supervisors are only liable under § 1983 for the constitutional violations that they
cause. Dodds v. Richardson, 614 F.3d 1185, 1213 (10th Cir. 2010). A supervisor may
5

Although plaintiffs include Mark Schmidt as a defendant in this claim, plaintiffs
provide no facts alleging that Mark Schmidt was a supervisor.
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be held liable for directly ordering a subordinate to violate a plaintiff’s rights, by having
actual knowledge of past constitutional violations carried out by a subordinate, or by
showing deliberate indifference. See id. at 1212. Regardless of what theory is
asserted for supervisory liability, a supervisor “is only liable for his or her own
misconduct.” Id. (quoting Iqbal, 556 U.S. at 677).
Plaintiffs do not allege that Superintendent King, Principal Ramsey, Assistant
Principal Lowe, or Mark Schmidt personally participated in the constitutional violations
at Broomfield High or that they had knowledge of the violations and acquiesced in their
continuance. See Docket No. 41 at 22-23. Thus, plaintiffs’ claim rests solely on
defendants’ failure to train school district employees on the proper use of electronic
technology. See id.
Failure to supervise and failure to train are treated the same in the Tenth Circuit.
Whitewater v. Goss, 192 F. App’x 794, 797 (10th Cir. 2006). To succeed on their
failure to train and/or supervise claim, plaintiffs must demonstrate the supervisor’s
inaction was the result of deliberate indifference. Graves v. Thomas, 450 F.3d 1215,
1218 (10th Cir. 2006). Deliberate indifference means more than simple or even
heightened negligence. It requires “an act or omission purposefully committed by a
person who must have realized that the conduct was unnecessarily dangerous or which
conduct was done heedlessly or recklessly, without regard to the consequences, or
without regard to the rights and safety of others.” Zuchel v. City & Cnty. of Denver, 997
F.2d 730, 735 (10th Cir. 1993). In addition to meeting the deliberate indifference
standard, the plaintiff must also make a strong causation showing. There must be a

18

direct causal link between the challenged action (or inaction) and the specific
constitutional deprivation, such that defendants, through their deliberate conduct, are
the moving force behind the injury alleged. Bd. of the Cnty. Comm’rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 404 (1997).
The Court finds that plaintiffs have not sufficiently alleged that the supervisor
defendants failed to train or failed to supervise their subordinates in a way that led to
Mr. Masse’s unlawful actions. First, there is no allegation that the supervisor
defendants were alerted to previous instances within the School District where
technology led to sexual harassment. See Hartley v. Parnell, 193 F.3d 1263, 1269
(11th Cir. 1999) (widespread abuse that is “obvious, flagrant, rampant and of continued
duration” can lead to supervisory liability if the supervisor does not act to correct these
behaviors); cf. Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001) (“Having knowledge
that subordinates are depriving young children of their constitutional rights, Gonzales’
failure to correct this conduct amounts to a deliberate indifference to the rights” of the
victims). Second, plaintiffs make no allegation that there was a pattern of sexual
harassment stemming from the use of technology. Brown, 520 U.S. at 407-08 (“[T]he
existence of a pattern of tortious conduct by inadequately trained employees may tend
to show that the lack of proper training . . . is the ‘moving force’ behind the plaintiff's
injury.”). Without notice or a pattern of previous actions based on the use of
technology, plaintiffs cannot show that the lack of a policy on how to use electronic
devices was the driving or moving force that led to plaintiffs’ injuries. Accordingly,
plaintiffs’ claim against the supervisor defendants, including Mark Schmidt, for
failure-to-train is dismissed.
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4. Failure to Supervise and Train against the School District
In their sixth claim, plaintiffs claim that the School District had an unconstitutional
practice or custom of failing to issue clear guidelines concerning the use of electronic
technology, failing to enforce existing guidelines, failing to monitor the use of such
technology, and failing to train staff to recognize and report indicia of harassment and
discriminatory conduct. Docket No. 41 at 24, ¶¶ 121-22. Hence, plaintiffs assert the
same failure-to-train claim against the School District as they do against the individual
defendants in their fifth claim.
Under § 1983, municipal liability is narrow. See Brown, 520 U.S. at 405.
Municipalities may not be held liable under a theory of respondeat superior. See City of
Okla. City v. Tuttle, 471 U.S. 808, 818 (1985). Rather, in order for a municipality to be
held liable under § 1983, plaintiffs must prove that a municipal policy or custom caused
the plaintiffs’ alleged deprivation. See Brown, 520 U.S. at 405. Furthermore, a plaintiff
who seeks to establish municipal liability “on the theory that a facially lawful municipal
action has led an employee to violate a plaintiff's rights must demonstrate that the
municipal action was taken with ‘deliberate indifference’ as to its known or obvious
consequences.” Id. at 407.
The Court in Brown noted that an inadequate training program could be the
basis for § 1983 liability, but only in “limited circumstances.” Id. In order for liability to
attach for failure to train, a pattern of constitutional violations arising directly from the
failure to train must exist. Thus, “[i]f a program does not prevent constitutional
violations, municipal decisionmakers may eventually be put on notice that a new

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program is called for.” Id. Furthermore, “the existence of a pattern of tortious conduct .
. . may tend to show that the lack of proper training . . . is the ‘moving force’ behind the
plaintiff's injury.” Id. at 407-08.
Consonant with Brown, the Tenth Circuit has created a three-part test that a
plaintiff must prove in order to hold a municipality liable in a § 1983 suit: (1) the
existence of a continuing, persistent and widespread practice of unconstitutional
misconduct by the school district’s employees; (2) deliberate indifference to or tacit
approval of such misconduct by a school district’s policymaking officials after notice to
the officials of that particular conduct; and (3) that the plaintiffs were injured by virtue of
the unconstitutional acts pursuant to the district’s custom and that custom was the
moving force behind the unconstitutional acts. Gates, 996 F.2d at 1041.
The Court finds that plaintiffs’ allegations are insufficient to raise a § 1983 claim
against the School District. Plaintiffs have not shown the existence of continuing,
persistent, and widespread sexual harassment by the School District’s employees that
had become so permanent and well settled as to have the force and effect of law.
Plaintiffs have only identified the misconduct of one employee, Mr. Masse, which is not
sufficient to show a custom. Cf. Tuttle, 471 U.S. at 823-24, (“[p]roof of a single incident
of unconstitutional activity is not sufficient to impose liability under Monell, unless proof
of the incident includes proof that it was caused by existing, unconstitutional municipal
policy”); Murrell, 186 F.3d at 1250 (noting that acts of a single individual who does not
have final decision making authority do not demonstrate a custom or policy of the
School District to be deliberately indifferent to sexual harassment as a general matter).

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Second, plaintiffs have failed to show tacit approval of such misconduct by appropriate
persons within the School District. There is no allegation that the School District had a
pattern of acquiescing to sexual harassment or that it regularly tacitly authorized
unlawful sexual harassment. The fact that Mr. Masse, Mark Schmidt, and Mr. Waneka
drank alcohol in front of students is insufficient to raise a claim for deliberate
indifference to sexual harassment. Consequently, because plaintiffs fail to sufficiently
allege that the School District was aware of Mr. Masse’s illegal conduct, plaintiffs
cannot hold the School District liable under § 1983. Accordingly, plaintiffs’
failure-to-train claim against the School District will be dismissed. Gates, 996 F.2d at
1041.
C. Colorado Failure to Report Abuse Claim
In their seventh claim, plaintiffs allege that the individual defendants violated
Colo. Rev. Stat. § 19-3-301 by failing to report child abuse of which they were aware.
The Colorado Child Protection Act of 1987, Colo. Rev. Stat. § 19-3-301 et seq.,
requires the mandatory reporting of all known or suspected child abuse or neglect.
M.G. v. Colo. Dep’t of Human Servs., 12 P.3d 815, 817 (Colo. App. 2000). Defendants
argue that they are immune from liability under the Colorado Governmental Immunity
Act (“CGIA”), Colo. Rev. Stat. § 24-10-101 et seq., because their actions were not willful
or wanton. Docket No. 44 at 13-14.
The CGIA governs circumstances under which a person may maintain a tort
action against the State of Colorado, its political subdivisions, instrumentalities, and
employees. See Mesa Cnty. Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1203

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(Colo. 2000). The CGIA provides that public entities are immune from all claims that lie
or could lie in tort, unless the claim falls within one of the eight limited areas for which
immunity has been waived. See Colo. Rev. Stat. § 24-10-105.
Under the CGIA, a public employee is immune from liability on tort claims arising
out of an act or omission of the employee during the performance of his or her duties
and within the scope of his or her employment. Colo. Rev. Stat. § 24-10-118.
However, public employees are not immune from tort claims if their acts or omissions
causing the injury were willful and wanton. Colo. Rev. Stat. § 24-10-118(2). The CGIA
defines “public employee” to include employees of public entities. The Court finds that
the defendants in this case are public employees within the meaning of the CGIA. See
Colo. Rev. Stat. § 24-10-103(4).
Although the CGIA does not define the term “willful and wanton,” the majority of
Colorado courts addressing the issue have applied the following definition contained in
Colorado’s exemplary damages statute: willful and wanton conduct is “conduct
purposefully committed which the actor must have realized as dangerous, done
heedlessly and recklessly, without regard to consequences, or the rights and safety of
others, particularly the plaintiff.” Colo. Rev. Stat. § 13-21-102(1)(b); Carothers v.
Archuleta Cnty. Sheriff, 159 P.3d 647, 650 (Colo. App. 2006); Zerr v. Johnson, 894 F.
Supp. 372, 376 (D. Colo. 1995); Castaldo v. Stone, 192 F. Supp. 2d 1124, 1141 (D.
Colo. 2001). Accordingly, the Court will apply these principles to the facts of this case.
Cf. Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994) (applying Colo. Rev. Stat. § 13-

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21-102(1)(b) to a claim of willful and wanton conduct in violation of the Fourth
Amendment by police officers).
The complaint adequately alleges that Matt Schmidt had actual knowledge of Mr.
Masse’s sexual contact with Jane Doe #3 and that he instructed her not to report such
conduct. The Court finds that plaintiffs’ allegations against Matt Schmidt have
overcome the CGIA’s immunity to suit because his act of advising her not to report
sexual contact with Mr. Masse was willful and wanton. However, because plaintiffs do
not sufficiently allege that the other defendants had actual knowledge of Mr. Masse’s
unlawful actions, plaintiffs’ seventh claim against the other individual defendants will be
dismissed for failure to state a claim upon which relief may be granted.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Motion to Dismiss Amended Complaint [Docket No. 44] is
GRANTED in part and DENIED in part as indicated in this Order. It is further
ORDERED that Claims One, Three, Four, Five, and Six are dismissed. It is
further
ORDERED that Claim Seven will be dismissed as to all defendants other than
defendant Matt Schmidt. It is further
ORDERED that defendants Boulder Valley School District No. Re-2,
Superintendent Chris King, Principal Ginger Ramsey, Assistant Principal Mike Lowe,
Mark Schmidt, Jason Waneka, and Jasmine Masse are dismissed from this case.

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DATED September 25, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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