Thorpe v. Breathitt County Board of Education et al
Filing
82
MEMORANDUM OPINION & ORDER: DENYING Breathitt County Board of Education's 77 MOTION for Reconsideration re 76 Order on Motion for Summary Judgment. Signed by Judge Karen K. Caldwell on 8/4/14.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CYNTHIA THORPE, as NEXT FRIEND
and On behalf of D.T., a minor child,
CIVIL ACTION NO. 5:11-CV-294-KKC
Plaintiff,
V.
MEMORANDUM, OPINION, & ORDER
BREATHITT COUNTY BOARD OF
EDUCATION, et al.,
Defendants.
*** *** ***
This motion is before the Court on the Breathitt County Board of Education’s (“the
Board’s”) motion to reconsider (DE 77) this Court’s previous order on the defendants’ motion
for summary judgment. For the reasons explained below, the Court will deny the Board’s
motion.
I. PROCEDURAL AND FACTUAL BACKGROUND
A more complete description of the facts in this case can be found in this Court’s opinion
and order entered on March 21, 2014. (DE 76). In her complaint, plaintiff Cynthia Thorpe, on
behalf of her minor daughter D.T., alleges that a teacher at Sebastian Middle School in Breathitt
County, defendant Charles Mitchell, made sexual advances toward D.T. (DE 1, p. 7). Thorpe
further alleges that the principal of Sebastian Middle, Reggie Hamilton, and the superintendent
of Breathitt County Schools, Arch Turner, knew that Mitchell had sexually harassed other
Sebastian Middle School female students. (DE 1, p. 7).
In a claim arising from Title IX, an appropriate official must be on actual notice that there
is a substantial risk of abuse to other students. Thorpe’s evidence as to this element of her Title
IX claim involves a prior incident regarding another Sebastian Middle School student, A.R.,
which Thorpe contends put the officials on notice. The facts surrounding the A.R. incident are
largely in dispute. However, Thorpe alleges that Turner and Hamilton knew that Mitchell had
texted A.R. 168 times in one night, knew that the contents of the message were of a sexual
nature, knew that Mitchell had texted other eighth grade girls: “T., B., E., and T.,” and knew that
Mitchell had talked to girls about their boyfriends, as well as what other girls thought about
Mitchell. In response, Turner and Hamilton decided to suspend Mitchell for ten days without
pay, but rehired him for the following school year. Hamilton’s efforts to retrieve the contents of
the text messages between Mitchell and A.R. were unsuccessful. Eventually, the school became
aware that Mitchell had been sending sexually explicit Facebook messages to D.T., and Mitchell
resigned from his position.
On March 20th, 2014, this Court entered an order granting defendants’ motion for
summary judgment, except as to Thorpe’s Title IX claim. The Board now contends that this
Court’s decision to deny its motion for summary judgment on the Title IX claim was in error.
II. STANDARD
Motions to reconsider are evaluated under the same standard as a motion to alter or
amend a judgment under Rule 59(e). Howard v. Magoffin Co. Bd. Of Educ., 830 F. Supp. 2d
308, 319 (E.D. Ky. 2012) (citing Keith v. Bobby, 618 F.3d 594, 597–98 (6th Cir. 2010)). To
succeed, plaintiffs must show one of the following: “(1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent
manifest injustice.” Id. (quoting Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d
612, 615 (6th Cir. 2010)). However, “[a] motion under Rule 59(e) is not an opportunity to reargue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.
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1998). Instead, “[m]otions under Rule 59(e) must either clearly establish a manifest error of law
or must present newly discovered evidence.” Id.
III. ANALYSIS
Defendant’s motion to reconsider is premised primarily on an unpublished 2013 Sixth
Circuit Court of Appeals decision, McCoy v. Board of Educ. Columbus City Sch., 515 Fed.
Appx. 387, 2013 WL 538953 (6th Cir. Feb. 13, 2013). As an initial matter, unpublished
opinions are not controlling in this Circuit. See Shuler v. Garrett, 715 F.3d 185, 187, n. 1 (6th
Cir. 2013); 6 Cir. R. 32. 1 (“Published panel opinions are binding on later panels. A published
opinion is overruled only by the court en banc.”). Thus, the McCoy case does not represent an
intervening change in controlling law; nor can it represent a clear error of law. Nevertheless,
even assuming McCoy is controlling, it does not change the outcome of the Board’s motion for
summary judgment in this case.
To assert an action under Title IX, Thorpe must show: (1) Mitchell abused D.T.; (2) a
school official with sufficient authority had actual notice that Mitchell posed a substantial risk of
sexual abuse to other students; and (3) the school district was deliberately indifferent to that
substantial risk.1 Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 363 (6th
Cir. 2005) (affirming jury instructions of the district court in a Title IX case). In the instant case,
the parties disagree about how much Turner and Hamilton knew about the A.R. incident, but the
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As way of clarification, this Court dismissed Thorpe’s § 1983 claims against the Board, Hamilton, and Turner in
its previous order. (DE 76). § 1983 liability is very similar to Title IX liability in these cases. However, the claims
are distinct. First, in order for the Board to be liable under a § 1983 claim, the Board itself must be the wrongdoer,
and there must be behavior rising to the level of a custom or policy on behalf of the district. See Doe v. Claiborne
Cnty., 103 F.3d 495, 508 (6th Cir. 1996). There are no facts to support such a claim in this matter. With regard to
individual liability of Turner and Hamilton under § 1983, the Sixth Circuit has reiterated that there must be “active
unconstitutional behavior.” Doe ex rel Doe v. City of Roseville, 296 F.3d 431, 440 (6th Cir. 2002). “In the absence
of any allegation that the supervisors had participated, encouraged, authorized or acquiesced in the offending
conduct, we held that the supervisors had, as a matter of law, neither committed a constitutional violation nor,
violated a clearly established right.” Id. (internal quotations omitted). Again, there is simply no evidentiary support
for such a claim in this case.
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parties do not dispute, at least for purposes of summary judgment, that Mitchell abused D.T.
Thus, the Court, in its earlier opinion, focused on the final two elements of the Thorpe’s Title IX
claim.
In its March 2014 order, this Court found that Thorpe had put forth enough evidence to
create a jury question about whether Hamilton and Turner were on actual notice that Mitchell
posed a substantial risk of sexually abusing other students. (DE 76, p. 18). The Court based that
decision on testimony from A.R.’s father that indicated Turner and Hamilton believed the text
messages between A.R. and Mitchell were of a sexual nature, evidence that Mitchell was texting
at least four other eighth grade girls aside from A.R., evidence that girls were texting Mitchell
about what other girls thought of him, and testimony from Mitchell that the day he resigned he
recalled that Superintendent Turner couldn’t believe that Mitchell had done this all again.
Further, even the school officials’ decision to suspend Mitchell for ten days suggests that they
knew Mitchell was doing something beyond simply texting students. With regard to deliberate
indifference, the question in this matter is whether the decision to suspend Mitchell for ten days
at the end of the school year without pay was clearly unreasonable in light of the known
circumstances.
Because the Court found there was a dispute about what those known
circumstances were, it also found that there was a jury question concerning whether the actions
of Turner and Hamilton were deliberately indifferent.
In support of its motion to reconsider, the Board relies almost exclusively on McCoy,
which is an unpublished Sixth Circuit case in which the Court of Appeals affirmed the district
court’s grant of summary judgment in a Title IX case. 315 Fed. Appx. at 391. In that case, a
teacher kicked a female student in her buttocks, grabbed a student’s arm and received a letter
warning to never place his hands on a student. The next year, students claimed that the teacher
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pinched them in their chest and posteriors. The teacher received another letter warning him to
never touch students. The following school year, a student accused the teacher of touching his
thigh, and the teacher explained he only did so to steady himself while rising from the classroom
floor. Id. at 389. A final incident occurred when a student claimed that the teacher had put his
hand down her pants in the classroom. The teacher was ultimately criminally prosecuted. The
Court said, “In less obvious cases, the proportionality of the school’s response in light of the
available information lies at the heart of the indifference analysis.” Id. 391. The Court went on
to affirm the district court’s granting of summary judgment and reasoned, “Had there been a
more discernible and explicit form of sexual harassment in the form of verbal or physical sexual
contact, the district’s decision to repeat its measures may have constituted deliberate
indifference.” Id. at 392.
Central to the McCoy decision was that the known circumstances surrounding the
teacher’s behavior were sparse, and “the school was made aware of several instances of physical
contact that were ostensibly non-sexual but could have served as potential indicia for sexual
malfeasance.” Id. at 392. In McCoy, there was no factual dispute; the school officials never
believed the touchings were of a sexual nature. By contrast, Thorpe alleges and provides
testimony and other evidence to show that Hamilton and Turner believed that Mitchell was
engaging in sexual texting and potentially more. In other words, there is a factual dispute, and
the Board is able to submit its own evidence to show that Hamilton and Turner were not aware of
the sexual nature of the text messages. However, if a jury found that Hamilton and Turner knew
that Mitchell was making sexual advances toward middle school girls through text messaging or
other means, then a reasonable jury could conclude that a ten day suspension of Mitchell was
clearly unreasonable.
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In short, as the Court in McCoy indicated, “the proportionality of the school's response in
light of available information lies at the heart of the indifference analysis.” Id. at 391. The issue
in this case is how much was apparent to school officials. This Court is unable, on a motion for
summary judgment, to say there is no factual dispute about whether Hamilton and Turner knew
that Mitchell was sending sexual text messages to middle school girls. Thus, this Court is unable
to say as a matter of law, that they were not deliberately indifferent.
IV. CONCLUSION
Accordingly, for all the reasons stated above, the Board’s motion to reconsider (DE 77) is
DENIED.
Dated August 4, 2014.
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