Brinkley et al v. Waters et al

Filing 116

ORDER granting in part and denying in part 88 Motion for Summary Judgment; denying 113 Motion to Strike. The summary judgment motion is GRANTED as to Plaintiffs section 1983 claims against Defendants A.C.S.D., Starr, and Copeland. It is DENIED as to Plaintiffs Title IX claim against A.C.S.D. Signed by Judge Lisa G. Wood on 3/31/21. (wwp)

In the United States District Court
for the Southern District of Georgia
Brunswick Division
ASHTON BRINKLEY and JARED
SPELL,
Plaintiffs,

No. 2:18-CV-89

v.
MICHAEL GLENN WATERS, an
individual; APPLING COUNTY
SCHOOL DISTRICT; DR. SCARLETT
M. COPELAND, in her official
and individual capacities; DR.
GENE A. STARR, in his official
and individual capacities;
VIOLET MARCHMAN, in her
official and individual
capacities; JAMES CAROL WATERS,
an individual; WANDA L. WATERS,
an individual; JOHN/JANE DOES
Nos. 1-5,
Defendants.
ORDER

This matter comes before the Court on the Motion for Summary
Judgment, dkt. no. 88, filed by Defendants Appling County School
District, Dr. Scarlett Copeland, and Dr. Gene Starr (collectively,
“Defendants”). Also pending before the Court is the Motion to
Strike, dkt. no. 113, filed by Plaintiff Ashton Brinkley and Jared
Spell (collectively, “Plaintiffs”). The motions are fully briefed
and ripe for review. For the reasons stated below, Defendants’

Motion for Summary Judgment is DENIED in part and GRANTED in part,
and Plaintiffs’ Motion to Strike is DENIED.
Factual Background
This case involves inappropriate sexual conduct by a high
school teacher toward Plaintiffs, two former students. Plaintiffs
both started their freshman year at Appling County High School in
the fall of 2012. Dkt. No. 102-1 ¶ 21. At some point in the fall
of

2010,

Defendant

Michael

Waters

(“Waters”) 1

applied

for

employment with the Appling County School District (“A.C.S.D”) and
was hired as a math teacher for Appling County High School. Id.
¶¶ 2, 3.
In Waters’ application for hire, he answered “yes” to the
following questions: (1) have you ever had a teaching certificate
or credential denied, revoked or suspended in any state and (2)
have

you

ever

been

placed

on

disciplinary

probation

or

been

suspended from a job, college or university. Id. ¶ 12.
In a written explanation attached to his application, Waters
outlined that the Professional Standards Commission (“PSC”) 2 had
suspended his teaching certificate for twenty days following a
2009 incident at his prior place of employment—the Camden County
School District. Dkt. No. 107-7 at 67. In his attached explanation,

Defendant Waters has not moved for summary judgment in the present case.
The PSC is the state agency in Georgia that licenses all public school teachers
in the state. In order to teach in a public school in Georgia, a teacher must
have a valid certificate with the PSC. Dkt. No. 102-1 ¶ 8.

1
2

2

Waters

indicated

that

multiple

students

had

made

allegations

against him for “inappropriate actions” but he claimed that the
“only action [he] acknowledged for the suspension was having an
inappropriate conversation with a student.” Id. at 68. Before
hiring him, an A.C.S.D. interview committee 3 probed Waters about
the written explanation he provided in his employment application.
Dkt. No. 102-1 ¶ 14. Waters further indicated that the previous
allegations were turned over to the PSC and the Camden County
Sheriff’s Department. Dkt. No. 88-1 at 11.
Upon

receiving

the

Camden

County

allegations,

the

PSC

conducted an investigation and issued a Probable Cause Case Report
(the “PSC Report”) on Waters’ conduct. Dkt. No. 102-5 at 2. The
PSC

Report

contains

allegations

that

Waters

“inappropriately

touched students. Specifically, several male students reported
that the male educator had discussed sexual matters and touched
them inappropriately.” Id. at 2. The report detailed the following
relevant investigative findings, which are undisputed:
The system discovered that four students alleged
inappropriate conduct by the educator [Waters]. The
students alleged that the educator discussed sexual
matters and touched them inappropriately.
The system notified DFCS. DFCS turned the investigation
over to law enforcement.
The law enforcement investigator assigned to the case
interviewed numerous witnesses. He felt that the most
The interview committee consisted of Defendant Starr, the chair of the math
department, and a non-party math teacher. Id. ¶ 5.

3

3

credible of the witnesses was Student 1 that reported
the educator touched him when he was a freshman (now a
senior) at the high school. Student 1 reported that after
the educator touched him he told the educator that he
would kill him if he ever touched him again. Student 1
dropped out of the FFA program and avoided the educator.
The
investigator
interviewed
two
other
students
([students] 2 & 3). These two students had apparently
collaborated with each other. Student 2 stated that the
educator had inappropriately touched him on four
different occasions. Student 3 stated that he had
witnessed the educator touching Student 2. The statement
of Student 3 was not consistent with Student 2’s
statement. The investigator discounted these statements.
The DA did not proceed with criminal charges based on
this information.
. . .
The students’ statements were consistent that the
educator talked to them about their personal lives. The
students related that the topic often involved sexual
questions and information.
The educator [Waters] wrote a four page single spaced
email explaining why he thought students would tell lies
about him. The educator specifically mentioned student
1 who had not been in the FFA program since his freshman
year.
. . .
[The
associate
principal]
was
involved
in
the
investigation of the educator. She believes that the
students were truthful. She thinks that the students
have difficulty with their statements, but overall, they
were truthful.
The educator’s direct supervisor and the investigator of
the current matter stated that he felt that the students
were attempting to discredit the educator. He did think
that student 1 was credible.
4

. . .
The educator states that he may have discussed sexual
topics with students.
Id. at 2-3.
Under a subsequent section labeled “Findings of Fact,” the
PSC Report concluded the following:
Students alleged that the
inappropriately and discussed
The
students’
statements
touching were not consistent.
discussing sexual topics with

educator touched them
sexual topics with them.
regarding
inappropriate
The educator acknowledged
the students.

Id. Ultimately, the PSC recommended a twenty-day suspension of
Waters’ teaching certificate. Dkt. No. 102-2 ¶ 2. It is undisputed
that the A.C.S.D. obtained and relied upon the PSC Report prior to
hiring

Waters.

Dkt.

No.

109

¶

2.

However,

no

monitoring

or

restrictions, other than normal supervision of teachers, were
placed on Waters at Appling County High School until the August
2014 incident discussed below. Dkt. No. 109 ¶ 7.
Plaintiffs met Waters during their freshman year at Appling
County High School when they joined Envirothon—a school club for
which Waters was the faculty sponsor. 4 Dkt. No. 102-1 ¶ 22-23. One
of the other students in Envirothon was C.F., who was a ward of
Waters and living with him during this time. Id. at 27. From 2012

4 Envirothon is a program that recognizes students in high school who are
interested in forestry, agriculture, entomology, and other areas of wildlife.
Dkt. No. 102-1 ¶ 24. The Envirothon team would compete against other teams
throughout the state and, at times, teams from other states. Id. ¶ 25.

5

until August 2014, A.C.S.D. had no knowledge of any allegations of
possible inappropriate conduct by Waters with either Plaintiffs or
any other students. Id. ¶ 32.
However, in August of 2014, an incident involving Waters and
Plaintiff Brinkley was reported to school officials. Specifically,
Gina Brinkley, Plaintiff Brinkley’s mother (“Ms. Brinkley”), and
Gina Brinkley’s boyfriend, Steve Clinich, spoke to Principal Gene
Starr (“Defendant Starr”) about the fact that Plaintiff Brinkley
did not come home after band practice the previous night. Dkt. No.
102-1 ¶ 33. After Plaintiff Brinkley did not come home at his usual
time, Ms. Brinkley tracked her son’s location to Waters’ home.
According

to

Defendants,

Clinich

informed

Starr

that

when

Brinkley’s mother arrived, all that she saw was Plaintiff Brinkley
come out of a “darkened room.” Dkt. No. 88-1 at 4.
Plaintiffs’ version of these facts, however, give a much more
detailed depiction of the events. As stated in her deposition, Ms.
Brinkley called Plaintiff Brinkley multiple times before tracking
his location and driving over to Waters’ house. Dkt. No. 102-10 at
3. Upon arriving at the Waters’ residence, she beat on the door
until she was let in by C.F. Id. at 4. She then went straight to
Waters’ bedroom and turned the knob, which was locked. Id. at 8.
At that point, Ms. Brinkley said she was “about to bust the door
down.” Id. When Plaintiff Brinkley opened the bedroom door, the
bedroom lights were off and Waters was “in his underwear only,
6

laid up in the bed.” Id. Further, it appeared that Plaintiff
Brinkley had been crying uncontrollably. Id. at 9. The next day,
Ms. Brinkley relayed all of this to Defendant Starr. Id. at 10.
This included her telling Starr that Waters was “laid up in his
bed in underwear only.” Id.
After

Defendant

Starr

was

made

aware

of

this

possible

inappropriate conduct by Waters, Starr informed Superintendent
Scarlett Copeland (“Defendant Copeland”) about the allegations,
and Copeland directed Starr to conduct an investigation. Dkt. No.
102-1 ¶ 9. As a part of the investigation, Defendant Starr called
PSC Investigator John Grant to see if any other complaints had
been filed against Waters. Dkt. No. 102-25 at 5. Grant indicated
that two prior complaints regarding Waters had been filed; there
was one complaint in 2006 which PSC did not investigate and another
incident in 2009 for which Grant claimed, “[Waters] received a
one-month probation for inappropriate touching of male students.”
Id. Grant suggested that Defendant Starr turn the current matter
over to the Division of Family and Children Services (“DFACS”).
Id.
Defendant Starr—along with other staff at the school—also
spoke to Waters and Plaintiff Brinkley. Id. ¶ 37. When questioned
why

he

was

at

Waters’

house

that

night,

Plaintiff

Brinkley

indicated that he thought Waters was mad at him, so he went to
Waters’ house after band practice to speak with him. Id. ¶ 38.
7

Plaintiff Brinkley stated that nothing inappropriate occurred with
Waters that night. Id. ¶ 39. Nonetheless, Defendant Starr turned
the matter over to DFACS for further investigation. 5 Dkt. No. 1071 at 45.
In addition to turning the matter over to DFACS, Starr also
informed Defendant Copeland of his investigative findings and
issued a directive letter to Waters regarding the incident. Dkt.
No. 102-1 ¶ 42. The directive letter instructed Waters to only
maintain appropriate and professional communication with students
and not to have students in his home or bedroom alone; the
directive

letter

also

implemented

a

“blanket

prohibition”

on

discussing personal matters with students. Dkt. No. 102-1 ¶ 43.
Defendant Starr advised Waters to have no further contact with
Plaintiff Brinkley. Dkt. No. 102-25 at 6. Further, Defendant Starr
assigned a support teacher to be in all of Waters’ classes and
assigned another teacher to be co-advisor of the Envirothon team.
Dkt. No. 102-1 ¶¶ 44-45. However, Defendant Starr clarified that
the co-advisor “wasn’t to monitor him. She was to be a part of the
program and to be included in what the program did. She was not an
administrative over him.” Dkt. No. 107-1 at 59. The co-sponsor was
not informed of the allegations involving Waters. Id. Waters was
still allowed to go on out-of-town Environthon trips with students

DFACS concluded there was insufficient evidence to pursue charges against
Waters regarding the August 2014 bedroom incident. Dkt. No. 102-1 ¶¶ 40-41.
5

8

after the August 2014 incident. Dkt. No. 109 ¶ 10. Waters responded
to Starr’s directive letter through a response letter telling Starr
that he had no intention to follow the mandates set out in the
directive letter. Dkt. No. 107-7 at 45-49. In his response, Waters
asserted that he had not and would not ever “cross the line” by
having an unprofessional relationship with any of his students.
Id. at 45.
In August 2015, the Appling County Sheriff’s office informed
A.C.S.D. that Waters had been arrested for sexual misconduct with
students. Dkt. No. 102-1 ¶ 46. The day after Waters was arrested,
Defendant

Starr

went

to

the

jail

and

obtained

an

immediate

resignation from Waters. Id. ¶ 47. Both Plaintiffs and Defendants
agree that from Plaintiffs’ freshman year until approximately
Spring 2015, Waters engaged in inappropriate conduct of a sexual
nature with Plaintiffs, including sexual acts, at his house and on
some of the Envirothon trips. Id. ¶ 30. Neither party disputes
that Waters continued to sexually abuse at least one of the
Plaintiffs in this case after the August 2014 bedroom incident
occurred. Dkt. No. 109 ¶ 11.
Plaintiffs’ Claims
Plaintiffs contend that Defendants are liable for injuries
caused by the repeated sexual molestation and other sexual acts
done to them by Waters. Relevant to Defendants’ motion for summary
judgment

are

the

causes

of

action
9

brought

against

A.C.S.D.,

Defendant Copeland, and Defendant Starr. Specifically, Plaintiffs
allege that: (1) A.C.S.D. violated Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681 et seq., (“Title IX”); (2)
all Defendants are liable for the deprivation of Plaintiffs’
Fourteenth Amendment substantive due process rights, in violation
of 42 U.S.C. § 1983 (“section 1983”); and (3) all Defendants were
negligent in hiring, training, and supervising Waters. 6
As a preliminary matter, the parties dispute what evidence
the Court should consider in deciding the summary judgment motion.
In

conjunction

with

their

reply

brief,

Defendants

filed

an

affidavit from Dr. Paul Shaw (“Shaw”). Dkt. No. 108. In response,
Plaintiffs filed a Motion to Strike the affidavit, arguing that
Defendants failed to timely disclose Shaw as a witness. Dkt. No.
113.

Thus,

before

addressing

Defendants’

Motion

for

Summary

Judgment, the Court will first address Plaintiffs’ Motion to
Strike.
PLAINTIFFS’ MOTION TO STRIKE
I.

Standard of Review

An affidavit submitted in connection with a summary judgment
motion is subject to a motion to strike if it does not meet the
standards set forth in Federal Rule of Civil Procedure 56. Story

Plaintiffs made clear in their response to the motion for summary judgment
that they do not contest the requested summary judgment on Plaintiffs’ state
law claims for negligent hiring, training, and supervision of Waters. Dkt. No.
102 at 24.

6

10

v. Sunshine Foliage World, Inc., 120 F. Supp. 2d 1027, 1030 (M.D.
Fla. 2000). Pursuant to Rule 56(c)(4), an affidavit used to oppose
a motion for summary judgment “must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4).
II.

Discussion

Specifically, Plaintiffs request that the Court strike Shaw’s
affidavit because “none of the rules or timelines were complied
with by defendants.” Dkt. No. 113 at 2. Plaintiffs take issue with
the fact that Defendants “waited to disclose Dr. Shaw not only
after the discovery period had expired but also after Plaintiffs
had completed their briefing.” Id. 7
Indeed, under Federal Rule of Civil Procedure 26(a)(I)(A)(i),
Defendants are required to provide initial disclosures of “the
name and, if known, the address and telephone number of each
individual likely to have discoverable information—along with the
Plaintiffs also contend that Dr. Shaw’s testimony should be excluded because
it is expert testimony that fails to comply with applicable discovery and
evidentiary rules. Dkt. No. 113 at 2. However, such evidence is not based on
scientific, technical, or other specialized knowledge as required to fall within
the scope of Federal Rule of Evidence 702. Rather, the statements contained in
Shaw’s affidavit are based on his personal knowledge as Director of Educator
Ethics for the PSC and as a member of the Management Team of the PSC Educator
Ethics division. As the Eleventh Circuit has consistently recognized, lay
witness testimony can be “based upon [a witness’s] particularized knowledge
garnered from years of experience within [a particular] field” and will not run
afoul of the prohibitions set forth in Federal Rule of Evidence 701(c). United
States v. Thomas, 631 F. App’x 847, 850 (11th Cir. 2015); see also United States
v. Hill, 643 F.3d 807, 841 (11th Cir. 2011) (“Rule 701 does not prohibit lay
witnesses from testifying based on particularized knowledge gained from their
own personal experiences.”).
7

11

subjects of that information—that the disclosing party may use to
support its claims or defenses, unless the use would be solely for
impeachment.” Defendants admit that they did not disclose Shaw in
their initial disclosures. Dkt. No. 115 at 2. However, it is
Defendants’ position that such disclosure was unnecessary because
they did not intend to rely on Shaw’s testimony in support of their
defenses. Id. Instead, Defendants argue, the only reason they
submitted

Shaw’s

affidavit

was

to

impeach

and

rebut

certain

statements within the affidavit of PSC investigator John Grant,
which Plaintiffs submitted in conjunction with their Response
Brief. Dkt. No. 102-14. Because Grant’s affidavit provided new
testimony that was not previously disclosed, Defendants argue that
they should be permitted to use Shaw’s affidavit to impeach and
rebut this evidence. Id. As laid out in Rule 26, initial disclosure
is

not

required

when

the

use

of

testimony

is

“solely

for

impeachment.” Fed. R. Civ. P. 26 (a)(I)(A)(i). Here, in their
response

brief,

investigator

Plaintiffs

Grant

that

submitted

stated

he

an

affidavit

“found,

based

from
on

PSC

[his]

investigation, that Mr. Waters did inappropriately touch student
1,” despite any such conclusive finding appearing otherwise in the
PSC Report. Dkt. No. 102-14 ¶ 6. In response to this new testimony,
Defendants submitted Shaw’s declaration as evidence that such
inappropriate touching would warrant a minimum one-year suspension
of the educator’s teaching certificate as opposed to the twenty12

day suspension that Waters actually received. Dkt. No. 108 at 17.
As such, the Court finds that Shaw’s testimony is being offered
solely to disprove the testimony being offered by Plaintiffs in
their response brief. United States v. Lezcano, 296 F. App’x 800,
803 (11th Cir. 2008) (quoting United States v. Frazier, 387 F.3d
1244, 1269 (11th Cir. 2004) (en banc) (“The purpose of rebuttal
evidence is to explain, repel, counteract, or disprove the evidence
of the adverse party, and the decision to permit rebuttal testimony
is one that resides in the sound discretion of the trial judge.”).
Because Shaw’s testimony properly serves impeachment purposes, it
is

not

subject

to

the

Rule

26

initial

disclosures

deadline.

Therefore, Plaintiffs’ Motion to Strike is DENIED. The Court will
consider both the Grant affidavit and the Shaw affidavit to the
extent

they

are

relevant

to

the

determination

of

the

claims

discussed below.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.

Legal Standard

Summary judgment “shall” be granted if “the movant shows that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” where the evidence would allow “a
reasonable jury to return a verdict for the nonmoving party.”
FindWhat Inv. Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
13

(1986)). A fact is “material” only if it “might affect the outcome
of the suit under the governing law.” Id. (quoting Anderson, 477
U.S. at 248). Factual disputes that are “irrelevant or unnecessary”
are not sufficient to survive summary judgment. Anderson, 477 U.S.
at 248.
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The movant must show the
court that there is an absence of evidence to support the nonmoving
party’s case. See id. at 325. If the moving party discharges this
burden, the burden shifts to the nonmovant to go beyond the
pleadings and present affirmative evidence to show that a genuine
issue of fact does exist. See Anderson, 477 U.S. at 257.
The nonmovant may satisfy this burden in one of two ways.
First, the nonmovant “may show that the record in fact contains
supporting evidence, sufficient to withstand a directed verdict
motion, which was ‘overlooked or ignored’ by the moving party, who
has thus failed to meet the initial burden of showing an absence
of evidence.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116
(11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan,
J., dissenting)). Second, the nonmovant “may come forward with
additional evidence sufficient to withstand a directed verdict
motion at trial based on the alleged evidentiary deficiency.” Id.
at 1117. Where the nonmovant attempts to carry this burden with
14

nothing more “than a repetition of his conclusional allegations,
summary judgment for the [movant is] not only proper but required.”
Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing
Fed. R. Civ. P. 56(e)).
II.

Discussion

a. Title IX
Plaintiffs bring their first claim under Title IX of the
Education Amendments of 1972. Title IX provides:
No 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.
20 U.S.C. § 1681(a). Plaintiffs assert this claim solely against
A.C.S.D., an education program that receives federal funds. 8
Plaintiffs contend they were subjected to harassment and
discrimination because of the repeated sexual molestation and
other sexual acts done to them by Waters, and they argue that
A.C.S.D. is liable under Title IX for failing to prevent this
harassment. Dkt. No. 1 ¶¶ 69-79. The Supreme Court has recognized
an implied right of action under Title IX for sexual harassment of
a student by a teacher. Gebser v. Lago Vista Indep. Sch. Dist.,

8 Paragraph three of the Complaint, dkt. no. 1 at 5, suggests that the Title IX
claim is also against Defendants Copeland and Starr. The Eleventh Circuit has
been clear, however, that Title IX claims cannot be pursued against individual
defendants in their personal capacities. Williams, 477 F.3d at 1300. To the
extent Plaintiffs intend to bring their Title IX claim against any individual,
such claim must be dismissed.

15

524 U.S. 274, 277 (1998). Furthermore, the Supreme Court has held
that Title IX places on public school systems the duty to protect
students
harassment

from
or

intentional
abuse,

by

discrimination,

teachers. Franklin

including
v.

Gwinnett

sexual
Cnty.

Public Sch., 503 U.S. 60, 75 (1992f). To hold the school district
liable, a plaintiff must establish that a district official with
authority 9 to institute corrective measures on the district’s
behalf had (1) actual notice of the teacher’s misconduct and (2)
thereafter

was deliberately

indifferent to

that

misconduct.

Gebser, 524 U.S. at 277. The standard for liability in Title IX
cases is far less rigorous in cases involving teacher-on-student
sexual harassment than those involving student-on-student sexual
harassment. Hill v. Cundiff, 797 F.3d 948, 968 (11th Cir. 2015)
(citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650-53
(1999)).
1. Actual Notice
Under Title IX’s actual notice requirement, a plaintiff must
demonstrate that the notice was “sufficient to alert the decisionmaker to the possibility of sexual harassment by the teacher.”
J.F.K. v. Troup Cnty. Sch. Dist., 678 F.3d 1254, 1255–56 (11th
Cir. 2012). Defendants contend “that school district officials did
not have notice that [Waters] was sexually abusing the Plaintiffs.”

It is undisputed that Defendant Starr was an “appropriate person” with
authority under Title IX. Dkt. No. 88-1 at 7.

9

16

Dkt. No. 88-1 at 7. In doing so, Defendants argue “that the only
‘actual notice’ about Waters’ sexual misconduct to an ‘appropriate
person’ was when the Appling County Sheriff’s office informed the
School District that Waters was arrested for sexual misconduct
with students.” Id. However, this argument overlooks the various
allegations of sexual misconduct contained in the PSC Report. A
Title IX plaintiff is not required to demonstrate prior knowledge
that a particular student was being abused. Doe v. Sch. Bd. of
Broward Cnty., Fla., 604 F.3d 1248, 1257 (11th Cir. 2010) (“[N]o
circuit has interpreted Gebser’s actual notice requirement so as
to

require

notice

of

the

prior

harassment

of

the

Title

IX

plaintiff herself.”). Instead, actual notice may also be satisfied
where

the

decision-maker

had

notice

of

a

teacher’s

sexual

harassment of students other than the plaintiff. Troup Cnty. Sch.
Dist., 678 F.3d at 1260. Here, the PSC Report indicated that
multiple

students

inappropriately.
student was

had

alleged

Moreover,

credible

and

the
at

that

Waters

report

least

had

indicated

one

official

touched
at

them

least

one

believed

the

students were truthful. A reasonable juror could conclude that the
PSC Report was sufficient to alert A.C.S.D. to the possibility of
future sexual harassment by Waters.
Yet, Defendants also suggest that Plaintiffs’ attempt to
fashion “actual notice” from the 2009 allegations of inappropriate
touching should fail because Waters was in another school district
17

at that time. Dkt. No. 108 at 1. Defendants take issue with the
fact that the prior allegations arose from students at Camden
County—“none of whom were in the Appling County School District at
the time those allegations were made.” Id. at 5. However, “actual
notice” for Title IX liability can still be found where a decisionmaker’s notice comes only from prior allegations at a different
institution. See Williams v. Bd. of Regents of the Univ. Sys. of
Ga., 477 F.3d 1282, 1288–90, 1294 (11th Cir. 2007). For example,
in Williams, the Eleventh Circuit held that a Title IX plaintiff
who suffered a violent sexual assault in a basketball player’s
dorm room sufficiently alleged actual notice on behalf of the
university

and

its

athletic

department

based

on

allegations

received from the basketball player’s prior university. Id. at
1294–95. Relevant to the Court’s analysis of actual notice was the
player’s alleged prior sexual harassment of a female store clerk
and employees at the player’s former institution, which were both
out-of-state incidents occurring two years before the plaintiff’s
assault. Id.
Further, Defendants contend the PSC Report does not provide
actual

notice

because

“law

enforcement

had

investigated

and

cleared Waters of the allegations of sexual touching of students
while Waters was in Camden County.” Dkt. No. 88-1 at 11 (emphasis
added). Thus, according to Defendants, “there was no ‘actual
notice’ of sexual misconduct by Waters in Camden County” prior to
18

A.C.S.D.’s hiring him. Id. As a preliminary matter, nothing in the
PSC Report indicates that Waters was cleared of the inappropriate
touching allegations against him. At most, the PSC Report concluded
there

was

insufficient

evidence

to

pursue

criminal

charges.

Drawing all inferences in favor of Plaintiffs, the PSC Report
indicated

at

least

one

of

the

allegations

was

credible.

A

reasonable juror could infer that Waters was not cleared—as in
exonerated—from the inappropriate touching charges leveled against
him. Moreover, allegations of sexual misconduct, standing alone,
may be sufficient to establish Title IX actual notice. Broward,
604 F.3d at 1259. As the Eleventh Circuit made clear in Broward,
it is not “determinative of the School Board’s liability that the
results of [prior] investigations were ultimately inconclusive.”
Id. Contrary to Defendants’ argument, conclusive findings of prior
sexual misconduct are not required to establish liability. Even if
prior complaints by other students are not clearly credible, at
some point “a supervisory school official knows . . . that a school
employee is a substantial risk to sexually abuse children.” Id.
Here,

a

reasonable

jury

could

find

that

A.C.S.D.

had

such

knowledge. The complaints contained in the PSC Report, when viewed
collectively, document multiple allegations of sexual assault—one
of which the law enforcement investigator found likely to be
credible.

Dkt.

No.

102-5

at

2-3.

19

The

fact

that

these

prior

incidents were unconfirmed cannot, as a matter of law, absolve the
School Board of Title IX liability. Broward, 604 F.3d at 1259.
2. Deliberate Indifference
In addition to requiring that an appropriate person have
actual notice of the teacher’s misconduct, a Title IX plaintiff
must show that the official was deliberately indifferent to that
misconduct. Id. Defendants claim that Plaintiffs have also failed
to demonstrate that the district was deliberately indifferent.
Dkt. No. 88-1 at 9. In response, Plaintiffs argue that the district
was deliberately indifferent because it did “absolutely nothing”
in response to the numerous allegations made against Waters in the
PSC Report. Dkt. No. 102 at 16.
Deliberate

indifference

will

be

found

only

if

a

school

district’s “response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.” Davis, 526 U.S.
at 648. Previous Eleventh Circuit decisions demonstrate that a
“reasonable response to sexual harassment may include corrective
action such as monitoring and admonishing an accused teacher or
student

despite

the

inconclusive

nature

of

the

school's

investigation into the misconduct.” Broward, 604 F.3d at 1262
(citing Sauls v. Pierce Cnty. Sch. Dist., 399 F.3d 1279, 1285 (11th
Cir. 2005) and Davis, 233 F.3d at 1373–74). However, a failure to
take

any

action

in

response

to

reports

of

harassment

could

constitute deliberate indifference. Davis, 526 U.S. at 654; Hurt
20

v. Shelby Cnty. Bd. of Educ., 198 F. Supp. 3d 1293, 1322 (N.D.
Ala. 2016) (“[A] school board's failure to monitor or admonish an
educator in response to a series of inconclusive investigations
could create a jury question on deliberate indifference.”).
In moving for summary judgment, Defendants do not contest
that

additional

monitoring

was

not

placed

on

Waters.

Nor

do

Defendants dispute that they took no measures to circumscribe
Water’s personal or isolated interactions with students. Instead,
Defendants argue that its reliance on two separate investigations
by

the

PSC

and

Camden

County

cannot

constitute

deliberate

indifference as a matter of law. Dkt. No. 88-1 at 11. Accordingly,
Defendants insist “there is no evidence that any investigation by
the District would have yielded a different result.” Dkt. No. 108
at 4. Simply put, Defendants argue that “mere speculation does not
create an issue of fact.” Dkt. No. 88-1 at 11.
Although it would be merely speculative to conclude that a
perfect investigation and more vigorous response to the complaints
would have prevented Plaintiffs’ sexual assault, that is not the
inquiry here. At this stage, the Court must determine only whether
a jury, as a matter of law, “could not find that [defendant]’s
response to the [prior] complaints was clearly unreasonable under
the known circumstances.” Broward, 604 F.3d at 1260. Viewing the
facts

in

the

light

most

favorable

to

Plaintiffs,

the

Court

concludes that a material issue of fact has been raised as to
21

whether A.C.S.D. was deliberately indifferent to Water’s alleged
sexual

misconduct.

If

A.C.S.D

had

actual

notice

of

multiple

allegations against Waters for inappropriate touching, its failure
to institute any corrective measures aimed at ferreting out the
possibility of Water’s sexual harassment of his students could
constitute deliberate indifference. Id. at 1261. A reasonable jury
could find that A.C.S.D.’s decision was clearly unreasonable in
light of the known circumstances. Therefore, Defendants’ Motion
for Summary judgment as to Plaintiffs’ Title IX claim is DENIED.
b. Section 1983 Municipal Liability
Plaintiffs also claim that A.C.S.D. is liable for Plaintiffs’
injuries

under

42

U.S.C.

§

1983.

Dkt.

No.

102

at

20.

As

a

preliminary note, Title IX and section 1983 are different statutes.
Hill v. Cundiff, 797 F.3d 948, 976 (11th Cir. 2015). The Court’s
resolution of Plaintiffs’ Title IX suit does not dictate the result
of a separate section 1983 analysis. The standards for establishing
liability under each mechanism varies to a certain degree. See
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 256 (2009).
Under Title IX, for instance, a plaintiff can establish school
district

liability

by

showing

an

appropriate

school

official

responded to actual notice of sexual harassment with deliberate
indifference. Hill, 797 F.3d at 976. However, a plaintiff bringing
a similar section 1983 claim must show a municipal custom, policy,
or practice caused the harassment. Id.
22

Here, Plaintiffs alleges that A.C.S.D. violated their rights
under the Due Process Clause of the Fourteenth Amendment.

Dkt.

No. 1 ¶ 82. Importantly, municipal entities such as A.C.S.D. cannot
be held liable under section 1983 for the acts of their employees
based on a theory of respondeat superior. Broward, 604 F.3d at
1263. Instead, “municipal liability is limited to action for which
the municipality is actually responsible.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 479–80 (1986). Thus, there are three
ways Plaintiff can establish municipal liability: (1) identify an
official policy; (2) identify an unofficial custom or practice
that is “is so permanent and well settled as to constitute a custom
and usage with the force of law”; or (3) identify a municipal
official

with

final

decision

violated

the

policymaking
plaintiff’s

authority

whose

constitutional

individual
rights. See

Cuesta v. Sch. Bd. of Miami-Dade Cnty., Fla., 285 F.3d 962, 966,
968 (11th Cir. 2002).
Here, Plaintiffs assert only that “the egregious conduct of
the school officials rises to the level of a ‘custom, practice or
policy’ under 42 U.S.C. § 1983.” Dkt. No. 102 at 21. Plaintiffs
contend that the August 2014 incident, coupled with the allegations
found within the PSC Report, demonstrates “repetitive multi-year
conduct” that rises to the level of a custom on behalf of A.C.S.D.
Id. at 22. However, Plaintiffs mischaracterize the custom at issue.
“To prove § 1983 liability against a municipality based on custom,
23

a plaintiff must establish 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 or usage’
with the force of law.’” Griffin v. City of Opa–Locka, 261 F.3d
1295, 1308 (11th Cir. 2001). Moreover, “if the municipality tacitly
authorizes

the

constitutional

deprivations

committed

by

its

employees or routinely displays deliberate indifference to the
consequences of acts of misconduct by its employees, then the
municipality’s failure to take corrective actions can rise to the
level of a custom or policy.” Hackett v. Fulton Cnty. Sch. Dist.,
238 F. Supp. 2d 1330, 1362 (N.D. Ga. 2002) (citing Griffin, 261
F.3d at 1308 (11th Cir. 2001)) (emphasis added).
Plaintiffs have not demonstrated that A.C.S.D. had a custom
of routinely ignoring complaints of sexual harassment within its
school district. Plaintiffs cite to Williams v. Fulton County
School District to show establishment of a custom. 181 F. Supp. 3d
1089, 1122 (N.D. Ga. 2016). In Williams, the district court held
that a plaintiff had sufficiently alleged a custom existed where
eight students submitted at least ten different reports of abuse
to the principal within a period of two years. Id. The Williams
plaintiff alleged that the school district was aware that a teacher
had been hurting children for many years yet allowed the teacher
to remain at the school without any reprimand. Id. Further, the
Williams plaintiff submitted that the district repeatedly failed
24

to intervene and even shielded the teacher from any consequences
through a pattern of intimidation and dismissiveness towards those
who reported misconduct. Id. at 1129. As such, the court had little
trouble

concluding

such

allegations

demonstrated

a

persistent

failure to take disciplinary action when confronted with repeated
abuse.
Here, unlike Williams, Plaintiffs have not demonstrated a
multi-year pattern of sexual assault occurring at A.C.S.D. For
one, the original complaints contained in the PSC Report were not
submitted to A.C.S.D.; the school district had only after-the-fact
knowledge of those complaints as part of the screening conducted
during Waters’ hiring process. Thus, A.C.S.D. had no chance to
correct (or fail to correct) any employee misconduct at that time
because Waters was not an employee of the district. 10
Further, while the August 2014 complaint from Ms. Brinkley
was brought to A.C.S.D. school officials, the investigation and
response taken by Defendants differed vastly from the Williams
It seems that Plaintiffs take issue with A.C.S.D.’s decision to hire Waters
despite the allegations contained in the PSC Report. See, e.g., Dkt. No. 102 at
1-2 (“[T]he district simply buried its head in the sand and ignored this
information that it was likely hiring a sexual predator.”). While a single
policymaking decision such as hiring an employee can serve as the basis for
municipal liability under some circumstances, Plaintiffs have not alleged or
submitted any argument for a theory of final policymaker liability. Without
argument from Plaintiffs for this separate theory of liability, the Court will
not consider whether liability is warranted on its own—especially since the
Supreme Court has been particularly cautious in extending municipal liability
to claims based on an allegedly inadequate hiring process. Bd. of Cnty. Comm’rs
v. Brown, 520 U.S. 397, 410, (1997) (observing that such claims “pose the
greatest risk that a municipality will be held liable for an injury that it did
not cause.”).
10

25

principal’s dismissiveness. No reasonable juror could conclude
that the prompt investigation and directive letter issued to Waters
amounted to “tacit authorization” of Waters conduct by A.C.S.D.
Hackett, 238 F. Supp. 2d at 1365 (holding that tacit approval
derives

from

a

district’s

repeated

“failure

to

correct

the

problem”). The PSC Report and the August 2014 incident do not
establish

that

A.C.S.D.

routinely

displayed

deliberate

indifference to acts of misconduct by its employees. Plaintiffs
have not shown a “persistent failure to take disciplinary action
against [Waters]” to support “the inference that a municipality
has ratified conduct, thereby establishing a ‘custom’ within the
meaning of Monell.” Fundiller v. City of Cooper City, 777 F.2d
1436, 1443 (11th Cir. 1985) (citing Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658 (1978)). As such, municipal
liability based on an unofficial custom or practice must fail.
Summary judgment is GRANTED as to this claim against A.C.S.D.
c. Section 1983 Individual Liability
Plaintiffs further contend that Defendants Copeland and Starr
are individually liable pursuant to section 1983. Dkt. No. 102 at
23. It is undisputed that neither Defendant Copeland nor Defendant
Starr

personally

participated

in

any

acts

that

deprived

the

Plaintiffs of their constitutional rights. Instead, Plaintiffs
contend that Starr and Copeland are personally liable as Waters’s
supervisor. Dkt. No. 102 at 21. Both individual Defendants insist
26

that they are entitled to qualified immunity on Plaintiffs’ section
1983 claims. Dkt. No. 108 at 10.
“The

doctrine

of

qualified

immunity

protects

government

officials ‘from liability for civil damages insofar as their
conduct

does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To be entitled to
qualified immunity, a government official must first demonstrate
that “he was acting within the scope of his discretionary authority
when the allegedly wrongful acts occurred.” 11 Rich v. Dollar, 841
F.2d 1558, 1563-64 (11th Cir. 1988) (citations omitted).
If a defendant satisfies this burden, then the Court must
grant qualified immunity unless the plaintiff can demonstrate: (1)
that the defendant’s alleged actions violated a constitutional or
statutory right; and (2) that such a right was clearly established.
Bogle v. McClure, 332 F.3d 1347, 1355 (11th Cir. 2003). Courts
have the discretion to determine which of these two prongs it will
address first. See Pearson, 555 U.S. at 232; see also Williams v.
Russo, 636 F. App’x 527, 532 (11th Cir. 2016).

Plaintiffs do not dispute that Defendants were acting within their scope of
discretionary authority when the alleged violations occurred. Dkt. No. 88-1 at
25.

11

27

1. Constitutional Violation
A. Supervisor Liability
“The standard by which a supervisor is held liable in her
individual capacity for the actions of a subordinate is extremely
rigorous.” Braddy v. Fla. Dep’t of Labor & Emp. Sec., 133 F.3d
797, 802 (11th Cir. 1998). As such, supervisory officials can be
held

liable

violations

under section

on

two

1983

grounds:

actions

(1)

“the

for

constitutional

supervisor

personally

participates in the alleged constitutional violation,” or (2)
“there is a causal connection between the actions of the supervisor
and the alleged constitutional violation.” Id. (quoting Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990)). The requisite causal
connection

is

established

when

either:

(1)

“a

‘history

of

widespread abuse puts the responsible supervisor on notice of the
need to correct the alleged deprivations, and he or she fails to
do so,’ or (2) when a supervisor’s ‘improper custom or policy
results in deliberate indifference to constitutional rights.’”
Doe, 604 F.3d at 1266 (quoting Hartley v. Parnell, 193 F.3d 1263,
1269 (11th Cir. 1999)).
Plaintiffs

suggest

that

a

history

of

widespread

abuse

warrants liability for Defendants Copeland and Starr. Dkt. No. 102
at 22-23. To show widespread abuse, Plaintiffs “must demonstrate
a

history

of

rampant,

flagrant,

obvious,

and

continuous

constitutional violations against students by [Waters] or other
28

teachers at [Appling County High School] that went unchecked by
[supervising officials].” Hackett, 238 F. Supp. 2d at 1359. For
example, in Broward, two reports of alleged sexual misconduct
within a year was insufficient to prove a pattern of widespread
abuse occurred under the principal—even though it was enough to
create a jury question for Title IX liability. 604 F.3d at 1267.
However, “[w]hen rights are systematically violated on a neardaily basis, such abuses are sufficiently egregious to warrant
supervisory liability, even if it is a single ‘bad apple’ engaging
in the repeated pattern of unconstitutional behavior.” Holloman ex
rel. Holloman v. Harland, 370 F.3d 1252, 1294 (11th Cir. 2004);
see also Valdes v. Crosby, 450 F.3d 1231, 1244 (11th Cir. 2006)
(denying summary judgment for a prison supervisor when thirteen
deprivations occurred across the prison over the course of one and
one-half years). Here, Plaintiffs have failed to demonstrate how
widespread abuse of an obvious and rampant nature persisted under
either Defendant’s supervision.
i.

Defendant Copeland

Plaintiffs point to the PSC Report and the August 2014 bedroom
incident to demonstrate the “widespread abuse” that occurred under
the supervision of Defendant Copeland. Dkt. No. 102 at 22. However,
as

Defendants

point

out,

Defendant

Copeland

did

not

become

superintendent until after Waters was hired. Dkt. No. 108 at 11.
Thus, even drawing all inferences in favor of Plaintiffs, the
29

evidence does not show that Copeland had any personal knowledge of
the allegations contained in the PSC Report as a supervisor. N.P.
by Perillo v. Sch. Bd. of Okaloosa Cnty., Fla., No. 3:18CV453-MCRHTC, 2019 WL 4774037, at *6 (N.D. Fla. Sept. 30, 2019) (dismissing
a claim for supervisor liability because the plaintiff failed to
show an official was a supervisor during the relevant time period
of abuse or had knowledge of any report of abuse). It is undisputed
that Defendant Copeland became aware of the August 2014 complaint
by

Ms.

Brinkley.

However,

that

complaint

was

an

“[i]solated

occurrence[]” and thus cannot demonstrate that sexual misconduct
had become a widespread practice under Copeland’s supervision. See
Broward, 604 F.3d at 1266. Plaintiffs do not meet the exacting
standard

of

supervisory

liability

with

respect

to

Defendant

Copeland.
ii.

Defendant Starr

It is undisputed that Defendant Starr had knowledge of both
the PSC Report and the August 2014 incident. However, only the
August 2014 incident led to an allegation of misconduct under
Defendant Starr’s supervision. Defendant Starr’s knowledge of the
Camden County investigation came from his screening of Water’s PSC
Report, all of which occurred in a different school district
outside of Defendant Starr’s supervision. 12 See N.P. by Perillo,
Plaintiffs base their assertion of Starr’s section 1983 liability solely on
the theory of supervisory liability through a history of widespread abuse.
Therefore, the Court does not address the possibility of Starr’s section 1983

12

30

2019 WL 4774037, at *9 (dismissing section 1983 supervisory claim
because knowledge of someone else’s prior investigation was an
insufficient basis to infer widespread abuse); see also Dorf v.
City of Evansville, No. 11-CV-351-S, 2012 WL 1440343, at *3 (D.
Wyo. Apr. 22, 2012) (suggesting that, at the very least, a section
1983 plaintiff must show that the defendant was in charge of other
state

actors

during

the

relevant

time

of

the

committed

violations), aff’d sub nom. Dorf v. Bjorklund, 531 F. App’x 836
(10th Cir. 2013). Plaintiffs have not offered any legal authority
for the proposition that a supervisor can be deemed liable for
failing

to

correct

abuse

occurring

outside

of

his

or

her

supervision.
Moreover, many of the undisputed facts here contradict any
suggestion that Defendant Starr allowed the August 2014 incident
to

go

“unchecked.”

After

conducting

his

own

independent

investigation, Defendant Starr turned the matter over to DFACS.
Dkt. No 108 at 11. On top of that, Defendant Starr also issued a
directive

letter

which

instituted

a

blanket

prohibition

on

discussing personal matters with students. Dkt. No. 102-1 ¶ 43.

liability based on an independent act or omission such as a hiring decision.
Compare Est. of Tilson v. Rockdale Cnty., Ga., No. 1:19-CV-01353-JPB, 2021 WL
913937, at *6 (N.D. Ga. Mar. 10, 2021) (discussing the separate analysis for
holding a supervisor liable based on a decision to hire); see also Bryan Cnty.,
520 U.S. at 410 (distinguishing between liability imposed on the basis of a
hiring decision and liability imposed on other grounds such as a supervisor’s
failure to train).

31

Furthermore, Starr advised Waters to have no further contact with
Plaintiff Brinkley. Dkt. No. 102-25 at 6. Finally, Starr assigned
a second teacher to be in all of Waters’ classes and to co-advise
the Envirothon team with Waters. Dkt. No. 102-1 ¶¶ 44-45. While
these actions seem to have been ultimately ineffective at stopping
Waters’s misconduct, it does not show a repeated failure to take
action

that

rises

to

the

level

of

a

separate

constitutional

violation under section 1983.
Even assuming arguendo that Defendant Starr had committed a
constitutional violation, Plaintiffs have failed to show that
Starr’s

supervision

violated

a

clearly

established

right

to

overcome qualified immunity. Although a plaintiff does not “have
to

show

that

the

precise

conduct

in

question

has

been

held

unlawful,” for a federal right to be clearly established, “its
parameters ‘must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.’”
Williams, 477 F.3d at 1300 (citing Anderson v. Creighton, 483 U.S.
635, 640 (1987)). Plaintiffs have not pointed to a single case
where supervisory liability has attached for complaints of abuse
that occurred beyond the scope of a defendant’s supervision.
Plaintiffs cite to Broward generally for support, but Broward
affirmed a grant of summary judgment to a high school principal
because two prior reports of abuse submitted under his supervision
were

still

insufficient

to

meet
32

the

“rigorous

standard”

of

establishing supervisory liability. See Broward, 604 F.3d at 126667.
Ultimately, Plaintiffs acknowledge that they cannot identify
a factually similar case to overcome qualified immunity, conceding
that “prior factually similar cases to this case are difficult to
locate.” Dkt. No. 102 at 23. Instead, Plaintiffs seek to invoke
the rare principle of obvious clarity, arguing that Starr’s conduct
was so egregious that “any reasonable official would know that his
or her conduct violated the law.” Id. (citing Corbitt v. Vickers,
929 F.3d 1304, 1312 (11th Cir. 2019)).
To be clear, the inquiry is not whether Waters’ underlying
misconduct was clearly established as a constitutional violation.
Such an approach would contravene the well-established axiom that
a supervisor cannot be held liable under the theory of respondeat
superior. See Gebser, 524 U.S. at 285. Instead, the relevant
inquiry

is

whether

independent

act,

incompetent

or

was
those

Defendant
so

Starr’s

egregious

who

that

knowingly

supervision,
“all

but

violate

the

as

the

an

plainly

law”

would

understand it as unconstitutional. Ashcroft v. Al–Kidd, 563 U.S.
731 (2011). The conduct at issue here does not satisfy this narrow
exception.

If

Plaintiffs

have

anything,
failed

cases
to

like

Broward

sufficiently

indicate

demonstrate

that

that

a

constitutional violation on behalf of Defendant Starr occurred at
all. Defendant Starr is protected by the doctrine of qualified
33

immunity; as such, Defendants’ Motion for Summary Judgment is
GRANTED as to Plaintiffs’ claims for section 1983 supervisory
liability.
CONCLUSION
For

the

above

reasons,

Defendants’

Motion

for

Summary

Judgment, dkt. no. 88, is GRANTED in part and DENIED in part.

The

motion is GRANTED as to Plaintiffs’ section 1983 claims against
Defendants A.C.S.D., Starr, and Copeland.
Plaintiffs’

Title

IX

claim

against

It is DENIED as to

A.C.S.D.

Additionally,

Plaintiffs’ Motion to Strike, dkt. no. 113, is DENIED.
SO ORDERED, this 31st day of March, 2021.

HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

34