Doe et al v. Walton Verona Board of Education et al
Filing
154
MEMORANDUM OPINION & ORDER: 1) Dan Sullivan's motion for summary judgment 120 is granted; 2) Motion for summary judgment of Bill Boyle, Mark Krummen, Dan Trame, Kyle Bennett on Ptffs' § 1983 claims 123 is granted; 3) Motion for summary judgment of Walton Verona Bd of Ed on Ptffs' Title IX claim 123 is DENIED; 4) Janie Doe's and Vance Sullivan's motions for partial summary judgment [100, 114] is granted; 5) Defs' joint motion for leave to file supplemental authority 147 is granted; 6) The U.S. Mag Judge is directed to commence mediation as soon as practical. A report of the result of said mediation shall be made to the Court no later than 10/15/2013. Signed by Judge William O. Bertelsman on 8/16/2013.(TJZ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 2011-171 (WOB-CJS)
JANIE DOE, ETC., ET AL.
VS.
PLAINTIFFS
MEMORANDUM OPINION AND ORDER
WALTON VERONA BOARD OF
EDUCATION, ET AL.
DEFENDANTS
This matter is before the Court on the partial motions for
summary judgment filed by Janie Doe (Doc. 100) and Vance
Sullivan (Doc. 114); the motions for summary judgment filed by
Defendants Dan Sullivan (Doc. 120), Bill Boyle, Mark Krummen,
Dan Trame, Kyle Bennett, and the Walton-Verona Board of
Education (Doc. 123); and Defendants’ joint motion for leave to
file supplemental authority (Doc. 147).
The Court heard oral
argument on these motions on August 9, 2013, and, thereafter,
took the motions under further advisement.
See Doc. 153.
Having made a thorough review of the record and given
careful consideration to the memoranda and oral arguments of the
parties, the Court finds that the motions for partial summary
judgment (Docs. 100, 114) must be GRANTED; Dan Sullivan’s motion
for summary judgment (Docs. 120) must be GRANTED; the motion for
summary judgment of Bill Boyle, Mark Krummen, Dan Trame, and
Kyle Bennett on Plaintiffs’ § 1983 claim (Doc. 123) must be
GRANTED; and the Walton-Verona Board of Education’s motion for
summary judgment on the Plaintiffs’ Title IX claim (Doc. 123)
must be DENIED.
FACTUAL HISTORY
I.
Introduction
Plaintiffs Janie Doe, John Doe, and Elizabeth Doe have
brought a claim under Title IX against the Walton-Verona Board
of Education (“WVBE”) and claims under 42 U.S.C. § 1983 against
Bill Boyle, Mark Krummen, Kyle Bennett, Dan Trame, and Dan
Sullivan in their individual capacities.
At all relevant times, Bill Boyle was the Superintendent of
WVBE, Mark Krummen was the Principal of Walton-Verona High
School (“WVHS”), Kyle Bennett was the Athletic Director for the
WV Schools, and Dan Trame was the Coach of the WV Boys’ High
School Basketball team.
Dan Sullivan, as well as being Vance
Sullivan’s father, was the Vice Principal at WVHS.1
Additionally, Janie Doe has asserted state law claims of
assault, battery, false imprisonment, and intentional infliction
of emotional distress against Vance Sullivan.
II.
Sexual Assault
In November 2010, Vance Sullivan (“Vance”), an 18-year old
senior at WVHS, began texting with Janie Doe (“Janie”), a 13year old eighth-grader at Walton-Verona Middle School (“WVMS”).
1
Plaintiffs have dismissed their claims against the Kentucky High School
Athletic Association (“KHSAA”) and John Anderson.
2
See Vance Sullivan Deposition at 8, 39-40.
Shortly thereafter,
the text messages became sexual in nature.
See Vance Depo. at
128, 130.
On December 8, 2010, Janie Doe’s eighth grade basketball
team was scheduled to play a game at WV.
Id. at 133.
On that
date, Vance drove to Janie’s game and text messaged Janie’s
friend asking that Janie meet him outside in the parking lot.
See Janie Doe Deposition at 27-28.
into Vance’s car.
Id. at 28.
Janie came outside and got
While a few details about what
happened in the car are in dispute, Vance Sullivan’s own
testimony establishes that he assaulted Janie Doe that evening.
See Vance Sullivan Depo. at 140, 147, 149-50.
Janie testified that, after this event, Vance gave her
menacing looks at school, but she did not report them.2
See
Janie Depo. at 37-38.
It is undisputed that no one within the WV administration
was aware of any type of relationship or interaction between
Vance and Janie prior to the December 8, 2010 assault.
However, more than four (4) years before this incident,
Vance had been disciplined twice for incidents of a sexual
nature occurring while he was enrolled at WVMS.
See Plaintiffs’
Exs. 30, 32.
2
The WVHS and WVMS share a common building and some of the eighth grade and
high school classes overlap. See Deposition of Mark Krummen at 46-48.
3
On February 24, 2006, Vance made unwanted sexual advances
towards a fellow seventh-grade female student while both
students were in the elevator.
See Doc. 130-3.
The female
student reported the incident to WV administration and Vance
ultimately received a 60-minute detention for the incident.
See
Plaintiffs’ Ex. 30.
Less than a month later, Mark Krummen caught Vance and a
female classmate engaging in sexual contact behind the gymnasium
after school hours.
See Plaintiffs’ Ex. 32.
Krummen testified
that this exchange was consensual and that Vance and the girl
were both disciplined.
See Mark Krummen Deposition at 29.
III. Janie’s Report of Assault
On Friday, December 17, 2010, Janie reported the December 8
incident to her teacher, Amy Cody.
11-15.
See Amy Cody Deposition at
Cody testified that she reported the incident to High
School Counselor Melissa Walker and Middle School Counselor Jane
Stout that same day.
Id. at 27.
Cody testified that she disclosed all the facts told to her
by Janie and that she was sure both Walker and Stout understood
the seriousness of the incident.
Id. at 27-29.
Both of these
counselors dispute that testimony, asserting that Cody advised
them that Janie wanted to speak to one of them, but that Cody
did not give any details or express that it was an emergency
4
situation.
See Melissa Walker Affidavit at ¶ 2; Jane Stout
Deposition at 20-21.
Janie eventually spoke to Melissa Walker on December 21,
2010.
See Walker Aff. at ¶ 6.
Immediately afterward, Walker
notified the Boone County Sheriff’s Department and WVMS
Principal Malina Owens.
Id.
Ms. Owens then immediately
informed Janie’s father and WVHS Principal, Mark Krummen.
See
Malina Owens Deposition at 19-20.
That same day, Krummen interviewed Janie’s friend whose
phone Janie used to text Vance on the night of the incident, but
the friend told Krummen that the messages had been deleted.
See
Krummen Depo. at 86.
Also that same day, Detective Everett Stahl of the Boone
County Sheriff’s Department contacted Krummen and, among other
things, asked Krummen not to say anything to Dan Sullivan as
Stahl intended on conducting a controlled phone call between
Janie and Vance.
See Krummen Depo. at 17-18.
However, during
the controlled phone call, Vance stated that he thought the
police may be involved because “they told Mr. Krummen and Mr.
Krummen told my dad.”
See Vance Depo. at Ex. 101.
Both Krummen and Dan Sullivan deny that they spoke about
police involvement on December 21, 2010.
20; Dan Sullivan Depo. at 12-13.
See Krummen Depo. at
Dan Sullivan testified that he
did tell Vance that day that it was a serious charge and that,
5
if true, the police would be involved.
at 12-13.
See Dan Sullivan Depo.
Nonetheless, as a result of the controlled phone
call, Vance was charged with Sexual Abuse Second Degree and
arrested on December 22, 2010.
IV.
See Plaintiffs’ Ex. 58.
Events After the Report of Assault
After Janie’s report on December 21, 2010, Vance was absent
from school on December 22nd and the school began its Christmas
break on December 23, 2010.
Ex. 38.
See Janie Depo. at 71; Plaintiffs’
On December 23, 2010, Vance and his parents had a
meeting with Krummen, Kyle Bennett, and Dan Trame to discuss
Vance’s continued participation with the boys’ basketball team,
including the basketball team’s upcoming trip to a tournament in
Orlando, Florida.
See Vance Depo. at 68.
At the meeting, Vance expressed that, pursuant to his
attorney’s advice, he would not talk about the incident.
69.
Id. at
Krummen made the determination that Vance would not be
suspended from basketball at that time, but that he would
reconsider that determination based upon the outcome of Vance’s
forthcoming January 6, 2011 court date on the criminal charges.
See Krummen Depo. at 106.
Janie testified that she could not remember anything
happening to her while she was on Christmas break which related
to Vance’s actions or her subsequent report to the police.
Janie Depo. at 72.
See
However, when classes resumed on January 3,
6
2011, Janie testified that some of her friends refused to sit
with her at lunch and a number of other students would “shoulder
check” her, “call [her] a slut and . . . try to cover it up with
a cough,” and “slam [her] locker shut.”
Id. at 76-78.
Janie
testified that she did not report any of these incidents to
teachers, but she did report them to her parents.
Id. at 78.
Additionally, early in the first week of January 2011,
Krummen met again with Vance to discuss alteration of Vance’s
schedule going forward so as to ensure that Vance and Janie did
not cross paths at school.
See Krummen Depo. at 57.
Specifically, Krummen advised Vance that he was not allowed to
go to the middle school during his “Help Desk” course; he was
restricted to the office area during his “Academic Leader”
course; and, since Janie had a class close to the office area,
Krummen would escort Vance to his next class.
Id. at 57-62.
Moreover, Krummen testified that both he and School
Resource Officer Jan Wuchner took on more hall monitoring
duties, and he requested that Vance’s teachers keep a closer eye
on him.
Id. at 103-104.
Despite these measures, Janie testified that during the
first week back from Christmas break she still saw Vance in the
hallways, and one day she felt someone push her and when she
turned around it had been Vance.
See Janie Depo. at 82-83.
Janie also testified that Dan Sullivan was at the end of the
7
hallway when this occurred, but she was unsure if he saw
anything.
Id. at 337.
Krummen testified that he never witnessed Vance and Janie
in the same vicinity during that first week back to school, but
he did admit that Janie’s parents reported Janie’s allegation
during that week.
See Krummen Depo. at 136-37.
Janie’s father
testified that he complained to Krummen on Tuesday, January 4,
2011 about the harassment and Krummen responded that he would
“place hall monitors out.”
See John Doe Depo. at 67.
Additionally, Janie testified that at basketball practice
during the first week back from Christmas break two of her
teammates, one of which was Vance’s cousin, “shove[d] [her]
down” and gave her “an extra . . . elbow in the stomach.” See
Janie Depo. at 85.
Janie stated that she did not report this to
her coach, Katelyn Ryan, but she did tell her parents.
Id. at
87-89.
After Janie’s father notified the WV administration of this
allegation, Krummen testified that he spoke with Coach Ryan
about the incident and she stated that she did not see any
altercation.
See Krummen Depo. at 155.
Krummen testified that
he spoke again with Coach Ryan and she had nothing to report.
Id.
Janie’s father also reported that he saw Vance at Janie’s
basketball game on January 6, 2011.
8
See Krummen Depo. at 137.
Kyle Bennett, the Athletic Director, testified that Vance was at
the game but only because he was waiting with the boys’
basketball team to get into their locker room because it was
occupied at that moment.
See Kyle Bennett Deposition at 24-25.
It is undisputed that while Vance was present, Janie was in
the other locker room with her team and she had no knowledge
that he was there.
See Janie Depo. at 93-94.
Krummen testified
that, after Janie’s father complained about Vance’s presence at
Janie’s January 6th game, Krummen spoke with Bennett and was
satisfied that Vance’s presence did not warrant further
discipline.
See Krummen Depo. at 142-43.
Janie’s father also testified that he reported to Krummen
serious, physical threats made by WV students toward Janie on
Facebook.
See John Doe Depo. at 68.
Krummen testified that
both he and Dan Sullivan spoke with the students who had
allegedly made the Facebook threats, but that no additional
action was taken.
See Krummen Depo. at 96-97, 155, 310.
On January 7, 2011, Janie and her mother were driving to
school when they allege that John Anderson, Vance Sullivan’s
uncle and a softball coach at WV, attempted to run them off the
road.
See John Doe Depo. at 261.
Immediately after this
altercation, Janie’s mother reported it to Krummen.
Depo. at 176.
9
See Krummen
Krummen advised Janie’s mother that this was not a school
matter and that Janie’s mother should call the police.
179.
Id. at
Plaintiffs contacted the police, but they ultimately
decided not to press criminal charges.
See John Doe Depo. at
270.
V.
Vance and Janie Withdraw from School
On the morning of Friday, January 7, 2011, Krummen met with
the Sullivans and advised them that since Vance’s criminal
charges had not been dismissed at his January 6, 2011 court
appearance, Vance would no longer be able to participate in
athletics.
See Krummen Depo. at 333-34.
10:47 a.m. that day.
Vance left school at
See Plaintiff’s Ex. 38.
Later that same day, Janie’s parents and their attorney met
with Bill Boyle, Mark Krummen, Malina Owens, and the WVBE’s
attorney.
See John Doe Depo. at 51-52.
At this meeting,
Janie’s parents asked that Vance be expelled or removed from the
general student population.
Id. at 52-53.
At that point in
time, Boyle and Krummen did not believe they had enough evidence
to take further disciplinary action against Vance.
Depo. at 109; Krummen Depo. at 79.
See Boyle
Boyle and Krummen testified
that they had contacted Detective Stahl to obtain a tape of the
controlled phone call, but Stahl was unresponsive.
Depo. at 82-83; Boyle Depo. at 38-39.
10
See Krummen
After those meetings, Krummen held a faculty meeting at
which he advised the entire faculty of the situation and updated
them on the progress of the investigation.
Id. at 91, 93.
The following Monday, January 10, 2011, Vance withdrew from
WVHS.
See Plaintiff’s Ex. 38.
Thereafter, Vance’s family moved
in with his grandparents, and Vance transferred to Newport
Central Catholic.
See Plaintiffs’ Ex. 85.
On February 1, 2011, Kyle Bennett certified to the KHSAA on
a Student Transfer form that Vance was not transferring due to
an action by the Board of Education.
Id.
Bennett testified
that he asked Krummen about this question on the form, and
Krummen responded that Vance was not transferring due to an
action by the Board of Education because Vance had withdrawn
from WV before the Board took any official action.
Depo. at 37.
See Bennett
This form was required in order for Vance to play
baseball at Newport Central Catholic.
See Plaintiffs’ Ex. 85.
On January 18, 2011, Janie’s mother submitted a letter of
intent to homeschool Janie for the remainder of the 2010-2011
school year. See John Doe Depo. at 121, Ex. WV10.
Prior to
withdrawing Janie for homeschooling, Janie’s parents also looked
into WV’s “Homebound” program, which allows a student to be
homeschooled for medical reasons with the intent on returning to
school.
Id. at 122.
11
Also, Janie’s parents asked the school to obtain a waiver
so that Janie could continue playing basketball.
Id.
However,
Kyle Bennett testified that he never submitted a waiver because
a KHSAA bylaw excludes homeschooled or “Homebound” students from
participating in athletics.
VI.
See Bennett Depo. at 29-30.
Events After Withdrawal
At some point in January 2011, Krummen became aware that
students were wearing t-shirts that said “Keep 5 Alive” in honor
of the number five (5) jersey Vance had previously worn for the
boys’ basketball team.
See Krummen Depo. at 96.
In response,
Krummen advised Dan Sullivan that he needed to enforce a “zero
tolerance” policy regarding this slogan.
Id. at 98.
On a few
occasions, Dan Sullivan ordered students to remove t-shirts
bearing this slogan.
Id. at 95-97.
On February 15, 2011, the boys’ basketball team had their
Senior Night game and a number of students in attendance wore
“Keep 5 Alive” t-shirts and carried “Keep 5 Alive” signs.
Plaintiffs’ Exs. 14-17.
See
Additionally, a few players on the
basketball team wore shirts during warm-ups which had “Sullivan”
and “5” on the back.
Id.
Athletic Director Kyle Bennett
testified that he confiscated a poster that referred to Vance,
but he did not make anyone remove their t-shirts.
Depo. at 40.
See Bennett
After this event, Krummen reprimanded Bennett for
his handling of this situation.
See Krummen Depo. at 194-95.
12
Krummen testified that he did not conduct an investigation
into the event because he did not believe it directly involved
Janie or Vance, and neither of them was present at the game.
See Krummen Depo. at 99.
Although he could not provide a date, Janie’s father
testified that Janie enrolled in Community Christian Academy
shortly after withdrawing from classes at WV.
Depo. at 124-25.
See John Doe
Janie testified that she believed she had
already been enrolled at Community Christian Academy when she
heard about the Senior Night game.
See Janie Depo. at 113.
Plaintiffs initiated this lawsuit on August 23, 2011.
See
Doc. 1.
ANALYSIS
I.
Title IX Claim
Plaintiffs’ Title IX Claim against the WVBE is based upon
their assertion that Janie was subjected to a severe and
pervasive sexually hostile environment, the WVBE knew of the
harassment, and it was deliberately indifferent to that
harassment.3
See Doc. 129 at p. 13.
“Title IX may support a claim for student-on-student sexual
harassment when the plaintiff can show (1) that the sexual
harassment was so severe, pervasive, and objectively offensive
3
WVBE admits that it is a recipient of federal funding and, thus, it is
subject to Title IX. See Doc. 24 at ¶¶ 7, 24.
13
that it could be said to deprive the plaintiff of access to the
educational opportunities or benefits provided by the school,
(2) that the funding recipient had actual knowledge of the
sexual harassment, and (3) that the funding recipient was
deliberately indifferent to the harassment.”
Soper v. Hoben,
195 F.3d 845, 854 (6th Cir. 1999) (citing Davis v. Monroe Cnty.
Bd. of Ed., 526 U.S. 629, 633 (1999)).
The Court, after carefully reviewing the entire record and
considering the excellent briefs and oral arguments of the
parties, finds that jury issues exist regarding the liability of
the WVBE under the above standard.
Therefore, the WVBE’s motion for summary judgment regarding
Plaintiffs’ Title IX claim is DENIED.
II.
§ 1983 Claims
Plaintiffs also filed claims under 42 U.S.C. § 1983 against
WVHS Principal Mark Krummen, WV Superintendent Bill Boyle, WV
Athletic Director Kyle Bennett, WVHS Boys’ Basketball Head Coach
Dan Trame, and WVHS Vice Principal Dan Sullivan in their
individual capacities.4
See Doc. 19.
To succeed on a § 1983 claim, Plaintiffs must show (1) that
the Defendants’ actions caused the deprivation of a clearly
established federal right and (2) the deprivation was caused by
4
“Title IX does not provide for claims against individuals in their personal
capacities.” Guy v. Lexington Fayette Urban Cnty. Gov't, No. 1998-cv-431WOB, 2013 WL 2382964, at *14 (E.D. Ky. May 30, 2013) (citing Soper v. Hoben,
195 F.3d 845, 854 (6th Cir. 1999)).
14
a person acting under the color of state law.
See McQueen v.
Beecher Cmty. Schs., 433 F.3d 460, 463 (6th Cir. 2006) (citation
omitted).
Similar to their Title IX claim against the WVBE,
Plaintiffs’ § 1983 claims against the above-referenced
Defendants also rely on Plaintiffs’ assertion that these
Defendants were deliberately indifferent to severe, pervasive,
and objectively-offensive harassment towards Janie.
See Doc.
132 at pp. 2-3.
Plaintiffs concede that individual § 1983 defendants
generally are not liable where the injuries are caused by purely
private actors.
Id. at p. 3.
However, Plaintiffs assert that
Defendants can be liable under the “state-created-danger theory”
if they can show that Defendants, through affirmative acts,
increased the risk of harm to Janie and then acted with
deliberate indifference to the private actors’ harassment.
Id;
see also McQueen, 433 F.3d at 464.
“Pursuant to the state-created-danger theory, a
governmental actor can be held responsible for an injury
committed by a private person if: (1) an affirmative act by the
governmental actor either created or increased the risk that the
plaintiff would be exposed to the injurious conduct of the
private person; (2) the governmental actor's act especially
endangered the plaintiff []; and (3) the governmental actor had
15
the requisite degree of culpability.” Wilson v. Columbus Bd. of
Educ., 589 F. Supp. 2d 952, 962 (S.D. Ohio 2008) (citing
McQueen, 433 F.3d at 464).
While Plaintiffs have proffered enough evidence to allow
their Title IX claim against the WVBE to be submitted to a jury,
the standards for establishing liability under Title IX and §
1983 differ.
See Fitzgerald v. Barnstable Sch. Comm., 555 U.S.
246, 257 (2009).
A Title IX plaintiff can impute liability to the school
district by showing that a single school administrator with
authority to take corrective action responded with deliberate
indifference.
Id. (citing Gebster v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 290 (1998)).
The action must “deprive the
plaintiff of access to the educational opportunities or benefits
provided by the school,” but it need not amount to a violation
of the victim’s constitutional rights.
See Soper, 195 F.3d at
854.
However, when an individual defendant has asserted the
defense of qualified immunity to a plaintiff’s § 1983 claims,
the Court must examine the facts as they pertain to the state of
mind and subsequent action or inaction taken by that individual
defendant.
See Arnold v. Lexington-Fayette Urban Cnty. Gov't,
352 F. App'x 972, 973 (6th Cir. 2009); Phillips v. Roane County,
Tenn., 534 F.3d 531, 542 (6th Cir. 2008); Jerauld ex rel.
16
Robinson v. Carl, No. 06-cv-05-WOB, 2009 WL 749781, at *7 (E.D.
Ky. Mar. 19, 2009), aff'd, 405 F. App'x 970 (6th Cir. 2010).
“Qualified immunity shields government officials from
liability for civil damages insofar as their conduct does not
violate clearly established [] constitutional rights of which a
reasonable person would have known.” Williams v. Port Huron Sch.
Dist., 455 F. App'x 612, 618 (6th Cir. 2012) (citations and
internal quotations omitted).
While Plaintiffs have shown that the actions, or lack
thereof, taken by the various administrators as a whole are
enough to submit their Title IX claim against the WVBE to a
jury, Plaintiffs cannot meet their burden of establishing that
the individual Defendants are not entitled to qualified
immunity.
See Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir.
2002) (“The ultimate burden of proof is on the plaintiff to show
that the defendant is not entitled to qualified immunity.”)
(citation omitted).
Many of the events on which Plaintiffs rely as the basis
for their § 1983 claims do not violate clearly-established
constitutional rights of which a reasonable person would have
known.
See Williams, 455 F. App'x at 618 (citation omitted);
see also Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 513 (6th
Cir. 1996).
17
For example, allowing Vance to go on the December
basketball trip, certifying to the KHSAA that Vance was not
transferring schools because of a Board action, and not
sufficiently quelling the “Keep 5 Alive” movement at the school
are not actions which a reasonable person would believe violated
Janie’s clearly established constitutional rights.
In fact,
while Janie may have been upset about these actions, they do not
constitute direct harassment of Janie.
Moreover, Plaintiffs cannot establish that any individual
Defendant acted with enough culpability that he, individually,
increased the risk that Janie would be subjected to severe,
pervasive, and objectively offensive harassment.
See McQueen,
433 F.3d at 464.
The Sixth Circuit has rejected the state-created-danger
theory where “there [is] no affirmative act that created or
increased the risk [and] the victim would have been in about the
same or even greater danger even if the state officials had done
nothing.”
Id. at 466.
Here, after reviewing the voluminous record, the Court has
found no affirmative act committed by any of the individual
Defendants which could be construed to have caused an increased
risk that Janie would be subjected to severe, pervasive, and
objectively-offensive harassment at the hands of her peers.
18
Therefore, the individual Defendant school officials are
entitled to qualified immunity from the Plaintiffs’ § 1983
claims.
Thus, the individual Defendants’ motion for summary
judgment regarding the Plaintiffs’ § 1983 claims is GRANTED on
the basis of qualified immunity.
III. State Law Claims
Plaintiff Janie Doe also alleges state law claims of
assault and battery, false imprisonment, and intentional
infliction of emotional distress (IIED) against Vance Sullivan
pursuant to 28 U.S.C. § 1367.
Janie has moved for partial summary judgment on her claims
of assault and battery, and Vance has moved for partial summary
judgment on Janie’s IIED claim.
A.
See Docs. 100, 114.
Janie Doe’s Claim of Assault and Battery
For the reasons stated in the Plaintiffs’ partial motion
for summary judgment (Doc. 100), the Court holds that Vance
Sullivan’s own testimony establishes his liability for the civil
claim of assault and battery against Janie Doe.
Thus, Janie’s motion for partial summary judgment is
GRANTED.
B. Janie Doe’s Claim of Intentional Infliction of
Emotional Distress.
Since Janie’s emotional distress claim arises out of the
same facts which form her assault and battery claim, her
19
emotional distress claim must be dismissed.
See Childers v.
Geile, 367 S.W.3d 576, 582-83 (Ky. 2012); Rigazio v.
Archdioceses of Louisville, 853 S.W 2d 295, 299-300 (Ky. Ct.
App. 1993).
Therefore, Vance’s motion for partial summary judgment is
GRANTED.
THEREFORE, THE COURT BEING ADVISED, IT IS ORDERED:
1. That Dan Sullivan’s
motion for summary judgment (Doc.
120) be, and is hereby, GRANTED;
2. That the motion for summary judgment of Bill Boyle, Mark
Krummen, Dan Trame, and Kyle Bennett on Plaintiffs’ §
1983 claim (Doc. 123) be, and is hereby, GRANTED;
3. That the motion for summary judgment of the Walton Verona
Board of Education on Plaintiff’s Title IX claim (Doc.
123) be, and is hereby, DENIED;
4. That Janie Doe’s and Vance Sullivan’s motions for partial
summary judgment (Docs. 100, 114) be, and are hereby,
GRANTED;
5. That Defendants’ joint motion for leave to file
supplemental authority (Doc. 147) be, and is hereby,
GRANTED;
6. That, the Court being of the opinion that settlement of
this matter is highly desirable due to mounting legal
20
expenses, the United States Magistrate Judge assigned to
this case is directed to commence mediation as soon as
practical.
A report of the result of said mediation
shall be made to the Court no later than October 15,
2013.
This 16th day of August, 2013.
21
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