J.B.F. v. Kentucky Department of Education et al

Filing 31

MEMORANDUM OPINION & ORDER: GRANTING dft's 20 MOTION for Summary Judgment; GRANTING dft's 19 MOTION to Exclude; a separate judgment will be entered. Signed by Magistrate Judge Robert E. Wier on 6/3/16.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
J.B.F., by and through his guardian
Marilyn Stivers,
Plaintiff,
v.
KENTUCKY DEPARTMENT OF
EDUCATION, et al.,
Defendants.

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No. 5:15-CV-33-REW
MEMORANDUM OPINION AND
ORDER

*** *** *** ***
Defendants—the Kentucky Department of Education (KDE), Kentucky School
for the Deaf (KSD),1 and Scott Haun2 in his individual and official capacities—moved for
summary judgment. DE #20 (Motion). Plaintiff, J.B.F.,3 by and through his guardian
Marilyn Stivers, responded. DE #25 (Response). Defendants replied. DE #27 (Reply).
The motion is ripe for consideration. For the following reasons, the Court fully GRANTS
DE #20. Various immunity doctrines shield each Defendant from every claim.
Alternatively, the state-law claims against Haun individually fail on the merits.

1

KSD is a public school in Danville, Kentucky, that serves kindergarten through 12th
grade deaf and hard-of-hearing students. See KRS 167.015; see also About Us—
Academics, Kentucky School for the Deaf, http://www.ksd.k12.ky.us/Content/12 (last
visited June 2, 2016).
2
Plaintiff named “Scott Houn” in the Complaint, but the record shows that the proper
surname spelling is Haun. See, e.g., DE #25-2 (Haun letter to Stivers). The Court will
refer to this defendant as Haun. Haun was a KSD School Safety Officer at the times
relevant to the Complaint. See, e.g., id. The Court previously dismissed former Defendant
Will Begley. DE #5 (Order).
3
Due to the nature of the case, the Court adopts the parties’ practice of referring to
Plaintiff and other students at the times relevant to the Complaint by initials.
1

I.

BACKGROUND
On February 4, 2014, two KSD students and dormitory roommates, J.B.F. (then

age 20) and J.B., engaged in sexual acts in their shared dorm bathroom. There is evidence
in the record to support either that the acts were consensual or nonconsensual. Compare
DE ##18-4 & 18-5 (Michael Jamison, dorm team leader, contemporaneously
characterizing the occurrences as “Consensual sexual activities”), DE #18-6 (Haun letter
to Stivers expressing same), and DE #18-8 (contemporaneous notes stating, “forced?
willing? said willing. embarrassed”), with, e.g., DE #18-1 (J.B.F. Depo.), at 32 (“At any
time did you consent or tell J.B. that was okay? No.”).
Beside the limited documentation from the school, the proof mostly consists of
J.B.F.’s and Stivers’s depositions. J.B.F. described the events leading up to the incident.
While a student at KSD, J.B.F. “wanted to be roommates with J.B.” DE #18-1 (J.B.F.
Depo.), at 12. J.B.F. generally stated that two other students (not J.B.) had been mean to
him previously (which he had told to someone at KSD). Id. at 15-16. J.B.F. agreed that
before the incident, he had never told anyone at KSD that he was afraid of J.B. Id. at 45.
Stivers confirmed. DE #18-2, at 24. Following a free-flowing deposition exchange, the
following picture emerged of J.B.F.’s version of events:
On February 4, 2014, by around 4:15 p.m., J.B.F. had returned to his dorm after
finishing in workshop and concluded showering. He re-dressed in the bathroom and
slightly cracked the bathroom door to let steam out. J.B.—his roommate—then came into
the bathroom and looked up pornography on his phone. Both students left the bathroom.
Apparently, at that time, J.B.F. left the dorm room, walked down the hallway, and alerted

2

Jamison4 and Mike Yance5 that J.B. had accessed pornography—which was all J.B.F.
told Jamison and Yance. At some point, J.B. also left the dorm and went to Jamison’s
office. Again, at some time (J.B.F.’s timeline is by no means clear), both students
returned to the dorm (although not together). See generally DE #18-1 (J.B.F. Depo.).
While J.B.F.’s deposition reflects considerable confusion concerning the precise
sequence, J.B.F. indicated that J.B. asked him to have sex while they were in the living
room after returning from Jamison’s office. J.B.F. declined. At some point, J.B.F. and
J.B. moved into the bedroom. There, J.B. said he wanted to punch J.B.F. J.B. then went
into the bathroom while J.B.F. stayed in the bedroom. J.B. later returned to the bedroom
and again said that he wanted to have sex. J.B. then physically grabbed J.B.F.’s arm and
pulled him into the bathroom. J.B.F. said both that he tried to escape (physically tried to
get out) (DE #18-1, at 17, 27) and that he did not try to fight J.B. off (id. at 26). J.B.
directed J.B.F. to perform oral sex and engage in anal sex; J.B.F. declined. J.B. then said
he wanted to kill J.B.F. and used a key as a weapon. J.B. punched J.B.F. with the key in
the chest three times. J.B. had locked the bathroom door, and J.B.F. unsuccessfully tried
to open it. By that point, J.B. was naked, but J.B.F. initially remained clothed, although
he said that J.B. “pulled [his] underwear down.” Id. at 28. Ultimately, J.B.F. performed
oral sex on J.B., and the two engaged in anal sex. J.B.F. testified that, contrary to the
school’s reports, he did not consent to the acts.6

4

Michael Jamison is the applicable KSD dorm team leader (J.B.F. described him as “the
boss”). Defendants described him as the dorm “supervisor.” DE #20-1, at 2.
5
J.B.F. described Yance as “the really strict one.” DE #18-1, at 40. Stivers described him
as “the dorm father.” DE #18-2, at 57.
6
J.B.F.’s deposition contained multiple inconsistencies and / or contradictory
answers. For instance, he first testified that he did not take his clothes off. DE #18-1, at
27. The following exchange occurred: “Did you have all of your clothes on? Yes. Did
3

At around 4:30 p.m. (a total elapsed time of fifteen minutes since J.B.F.’s return
to the dorm from workshop),7 Yance appeared at the room to locate J.B.F. and “flickered
the light switch on and off and banged on the door[.]” Id. at 26. When this happened, J.B.
opened the bathroom door, and Yance “found out” what had happened between the
students. Id. at 38. Yance retrieved Jamison, and the two returned to the students’ dorm.
Jamison spoke with J.B.F.8 J.B.F. testified that he did not tell Jamison that he consented
to sex with J.B. Id. at 39.
Jamison, however, summarized the incident as follows:
I was doing a quick room check of students this afternoon and went to
[J.B.F.’s] room to see if he had begun to clean his room as he was

J.B. ever try to take any of your clothes off? No. Did you ever take any of your clothes
off? J.B. pulled my pants down.” Id. at 28.
As a second example, this exchange occurred: “Did you touch any of J.B.’s
private genital area while you all were in the shower room? No. You mentioned earlier
that J.B. wanted you to perform oral sex for him? Yes. Did that actually ever happen in
the shower room? Yes. It did? Yes. Okay. So did you perform oral sex on J.B., or did he
perform oral sex on you? He did it on me. Okay. So J.B. put his mouth on your private
genital area? No. Did you put your mouth on his private genital area? Yes.” Id. at 28-29.
A third example: “Did you talk about this incident or encounter between you and
J.B. with anybody other than Michael [Jamison]? No. You didn’t discuss it with anybody
else at the school? No. Did you ever talk to Yance about it. Yes.” Id. at 39-40. Further,
J.B.F. later stated that he also told Stivers. Id. at 41-42 (“Before the letter was sent to
your aunt, did you tell her what happened? Yes. You did? Yes.”). J.B.F. said this
happened on the Friday immediately following the incident (i.e., February 7, 2014). Id. at
42.
Additionally, as expressed above, the bathroom—living room—bedroom—
bathroom progression, in connection with J.B.F. and J.B. both leaving the dorm to visit
Jamison and Yance, is far from clear. J.B.F. made no mention of the living room
encounter after the deposition questioning brought out the Jamison interactions. J.B.F.
did not initially mention the Jamison / Yance encounter—quite an important detail—
when telling his story; it only came out toward the end of questioning. A general picture
of J.B.F.’s remembrance emerges from the deposition, but significant murkiness remains.
7
The handwritten notes indicate that “M. Jamison open the door” with a time marker of
“2/4/14 5:15.” DE #18-8, at 1. The KSD incident report forms indicate a time of 4:20
p.m. DE ##18-4, 18-5.
8
Defendants indicate that immediately post-incident, “Mr. Yance supervised J.B.F.” and
later “Mr. Haun and Mr. Jamison interviewed J.B.F.” DE #20-1, at 3.
4

restricted to his room this afternoon until it was cleaned. I entered the
room and [J.B.F.] and his roommate [J.B.] were no where to be found in
the room. I noticed the shower door closed. I went to check to see if [J.B.]
was any where else in the dorm and he was not. I went back to the room
and flipped the light switch to get whoever was in the shower room’s
attention. After approximately 4 minutes, [J.B.] opened the door while
trying to button his pants. [J.B.F.] was hiding behind the door trying to
latch his pants up. He didn’t have his shoes on as they were on the floor
and it was obvious what was going on in the shower room. Both boys
were sent to my office for discussions. [J.B.F.] was not cooperative at first
but later confessed to allowing anal penetration and performing manual
stimulation as well as oral sexual activities on [J.B.]. [J.B.] also confessed
to [J.B.F.] performing manual stimulations on him as well as [J.B.F.]
performing oral sex on him as well. [J.B.] denied any penetration
occurred.
DE #18-4. The contemporaneous handwritten notes indicate that J.B.F. changed the story
of what happened multiple times—“at 1st denied [line break] admitted ‘yes’ . . . [line
break] anal sex yes [line break] no anal sex [line break] [J.B.F.] later said no anal then
yes.” DE #18-8, at 1.9
There is evidence that KSD officials attempted to contact Stivers very soon after
the incident. See, e.g., DE ##18-4 (Incident Report Form on J.B.F. with “Parent
contacted” box checked on 2/4/14 and handwritten note stating, “left message to call back
. . . Jamison called left message several times to call back”); 18-8 (Notes), at 2 (“M.J.
[presumably, Jamison] tried to contact aunt as he reported. left message”) and 3 (“M.J.
called aunt left message.”). An email indicates that Jamison made a “third attempt” to call
Stivers at 8:27 p.m. on February 6, 2014. DE #20-2. Jamison indicated that he got her
machine for the third time that day and “left another message[.]” Id. Further, J.B.F.
testified that he told Stivers of the incident the Friday after it happened. DE #18-1, at 42.

9

While Jamison wrote violations for consensual sexual contact, J.B.F. stated in his
deposition that he never told Jamison that he “agreed to or consented to have sex with
J.B.” DE #18-1, at 39.
5

Haun indisputably sent the letter informing Stivers of the disciplinary action on March 4,
2014—a month following the incident. DE #18-6 (Letter).
Marilyn Stivers is the legal guardian of J.B.F. DE #1-1 (Complaint), at ¶ 2.
Stivers, in her deposition, had no “reason to believe that there were any altercations,
harassment, abuse between [J.B.F.] and J.B. prior to the February 2014 incident[.]” DE
#18-2, at 25. Stivers described receipt of the KSD letter as her first notice of the incident.
She expressly stated that J.B.F.’s testimony that he notified her of the incident the Friday
after it occurred was false. Id. at 28-29. After receiving the letter, she confronted J.B.F.,
who described the incident to her and said that KSD staff (“they”) said that J.B.F. was
“guilty.” Id. at 27. She said [and mostly this is hearsay] that both students were “taken to
the office in the same office at the same time sitting in the same room to be questioned.”
Id. at 28. She denied knowledge of KSD’s attempts to call her: “There was nothing on my
home phone, and I’ve always told them to call my cellphone. The home phone is just for
Internet only. There was no messages [sic] on my phone.” Id. at 33-34.10 Stivers and her
husband went to KSD the Monday after letter receipt. She questioned KSD officials
about “what took them so long to tell me why they questioned my son without my
presence,” why the officials put both students in the same room for questioning, and why
they told J.B.F. he was “guilty.” Id. at 35. She further inquired into the guidelines for
police or other state services contact. Id. at 36. She described a later police investigation
she initiated. Id. at 39-40.11

10

See also DE #18-2, at 42 (“[T]here w[ere] no messages on the home phone, no missed
calls. I didn’t get the phone bill. There w[ere] no calls from KSD to myself, and that’s the
only number – I said in an emergency, you can call the home phone, but this is the
number that is the main prior contact, cellphone only.” (paragraph break omitted)).
11
The record does not document that investigation, but it is clear no charges resulted.
6

Stivers testified that she did think that KSD intended to harm J.B.F. Id. at 55
(“Because the incident happened in March and I was not notified until February,[12] and I
kept sending my son back not knowing what was going on, oblivious to what had
happened to him. . . . I believe they did not give him protection. They did not take every
measure to protect him or anybody else at that school.”). However, Stivers was not aware
of other incidents of harassment or abuse of J.B.F. at KSD following the J.B. incident. Id.
at 57-58. She agreed that KSD’s handbook did not require a police investigation. Id. at
60. She did not have information “that indicates the policies or procedures were applied
differently to [J.B.F.] than they were applied to other students in the school[.]” Id. at 61.
She agreed that J.B.F. and J.B. were separated as roommates. Id. at 62. Stivers did not
have any information regarding KSD staff training or instruction. Id. She indicated that
J.B.F. may not understand what the word “consensual” means. Id. at 64-65.
The underlying J.B.F.—J.B. incident, along with Defendants’ actions preceding
and following it, gave rise to this case. J.B.F., by and through Stivers, his guardian, sued,
alleging four claims: (1) § 1983 / Equal Protection Clause violations; (2) negligence; (3)
negligent supervision / hiring; and (4) intentional infliction of emotional distress (IIED).
See DE #1 (Complaint). Following a period of discovery, Defendants moved for
summary judgment on all claims, and the matter is fully briefed. DE ##20 (Motion), 25
(Response), 27 (Reply).
II.

STANDARD OF REVIEW
A court “shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
12

It appears that Stivers mistakenly reversed the months. The other evidence indicates
that the incident happened in February.
7

of law.” Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence and draw all
reasonable inferences from the underlying facts in favor of the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986);
Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not
“weigh the evidence and determine the truth of the matter” at the summary judgment
stage. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact
initially rests with the moving party. Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553
(1986) (requiring the moving party to set forth “the basis for its motion, and identify[]
those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate an absence of a
genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for
summary judgment bears the initial burden of showing that there is no material issue in
dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving
party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106.
S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule
56(c) mandates the entry of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp., 106 S. Ct.
at 2552; see also id. at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial
would be on the non-moving party, the party moving for summary judgment may satisfy
Rule 56’s burden of production in either of two ways. First, the moving party may submit
affirmative evidence that negates an essential element of the nonmoving party’s claim.

8

Second, the moving party may demonstrate to the Court that the nonmoving party’s
evidence is insufficient to establish an essential element of the nonmoving party’s claim.”
(emphasis in original)).
A fact is “material” if the underlying substantive law identifies the fact as critical.
Anderson, 106 S. Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A
“genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S. Ct.
at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no ‘genuine issue for trial.’”) (citation omitted). Such
evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC,
187 F. App’x 428, 444-45 (6th Cir. 2006).
III.

ANALYSIS
Defendants advance a variety of arguments to avoid liability, mostly centered on

various immunity defenses.13 The Court will analyze each in turn.

13

The Court must remark on the particular unhelpfulness of the briefing in understanding
and framing the issues. Defendants’ brief is perplexingly organized and quickly passes
over major areas of immunity analysis. The bigger problem, however, is Plaintiff’s brief.
Plaintiff does not meaningfully grapple with a variety of key immunity questions
presented and spills much ink—entire briefing sections—over wholly tangential matters.
Further, Plaintiff cites documents that he does not attach—e.g., the KSD Code of
Conduct. See DE #25, at 11 (referencing the Code as Exhibit 3, but not attaching it).
Plaintiff also summarizes or alleges factual history with utterly no citations to proof or
the record. In the end, the briefs largely talk past one another, and neither side completely
examines the alleged bases for judgment, leaving the Court to evaluate as best it can. This
has complicated and lengthened the decisional process.
9

Immunity on the Federal Claim – KDE, KSD, Haun (Official Capacity)
First, Defendants argue that they are entitled to immunity from Plaintiff’s § 1983 /
Equal Protection claim. DE #20, at 4-5. Plaintiff opposes. DE #25, at 6-9.
“[A] state agency may not be sued in federal court, regardless of the relief sought,
unless the state has waived its sovereign immunity or Congress has overridden it.”
Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991) (granting the Kentucky Cabinet
for Human Resources immunity); see also Ferritto v. Ohio Dep’t of Highway Safety, 928
F.2d 404, 1991 WL 37824, at *2 (6th Cir. Mar. 19, 1991) (per curiam) (“The Eleventh
Amendment prohibits actions against states and state agencies under section 1983 and
section 1985.”). “The Eleventh Amendment bars a suit against a state or one of its
agencies in federal court unless the state has given express consent, regardless of the
relief sought. . . . Kentucky has not waived its immunity.” Adams v. Morris, 90 F. App’x
856, 857 (6th Cir. 2004). “Eleventh amendment immunity extends to state agencies that
act as arms of the state, but does not extend to cities, counties, or other political
subdivisions of the state.” Creager v. Bd. of Educ. of Whitley Cnty., Ky., 914 F. Supp.
1457, 1460 (E.D. Ky. 1996).14 The Sixth Circuit considers a variety of factors to
determine if a governmental entity is an “arm of the state” for Eleventh Amendment
purposes, including “local law and decisions defining the status and nature of the agency
involved in its relation to the sovereign[, and] whether, in the event plaintiff prevails, the
payment of the judgment will have to be made out of the state treasury,” among others.
See Hall v. Med. College of Ohio, 742 F.2d 299, 302 (6th Cir. 1984).
14

Plaintiff’s substantive reliance on Creager and Blackburn v. Floyd Cnty. Bd. of Educ.,
749 F. Supp. 159 (E.D. Ky. 1990), is misplaced. Those cases evaluated immunity of local
Boards of Education. Plaintiff did not here sue a local Board of Education, as to which
the immunity analysis differs.
10

Here, KDE is obviously a state agency and an arm of the state. It is one of
Kentucky’s principle governmental departments. The Kentucky Board of Education
governs it. KRS 156.029(7); see also KRS 156.010; KRS 156.035. The General
Assembly explicitly called the KDE a “state agency[.]” KRS 156.010(5). The law is clear
that a “state agency may not be sued in federal court, regardless of the relief sought,
unless the state has waived its sovereign immunity or Congress has overridden it.”
Whittington, 928 F.2d at 193. Plaintiff points to no waiver or congressional override of
immunity. See Adams, 90 F. App’x at 857 (“Kentucky has not waived its immunity.”).
Indeed, the Kentucky General Assembly expressly disclaimed any immunity waiver as to
the Kentucky Board of Education, the KDE, or their officers, agents, or employees. KRS
156.035(3)(c). KDE is thus entitled to immunity from the federal charge.
Second, KSD is “directly operated by the state” and is a subdivision of the KDE.
Eva N. v. Brock, 741 F. Supp. 626, 630 (E.D. Ky. 1990); see also KRS 156.010(1)(d);
KRS 156.070(1); KRS 167.015(1) (“[T]he Kentucky School for the Deaf at Danville,
Kentucky, shall be managed and controlled by the Kentucky Board of Education.”); KRS
167.150 (authorizing the Kentucky Board of Education to “prescribe admission policies,
curriculum, and rules for the government and discipline of pupils” at KSD and “and fix
and regulate tuition fees and terms of admission of [out-of-state] pupils”). As a mere
subdivision of the state-agency Department, KSD is also immune from suit. Kentucky
law indicates that KSD is dependent part of KDE, Hall, 742 F.2d at 302, and it appears
that, as such, any judgment against KSD would be paid out of the Commonwealth’s
treasury, id. Under the same principles, KSD is likewise entitled to immunity from the
federal charge.

11

Courts have regularly recognized that state boards of education, contrasted with
local boards, equate to the state itself and thus receive immunity. See, e.g., Workman v.
Mingo Cnty. Schools, 667 F. Supp. 2d 679, 685 (S.D. W. Va. 2009) (“State boards of
education[] are widely recognized as entitled to Eleventh Amendment protection.”)
(citing Cullens v. Bemis, 979 F.2d 850, 1992 WL 337688, at *1 (6th Cir. Nov. 18, 1992)
(table) (stating that the Michigan Department of Education is “absolutely immune under
the Eleventh Amendment”); COPE v. Kansas State Bd. of Educ., 71 F. Supp. 3d 1233,
1241 (D. Kan. 2014) (dismissing Kansas State Department of Education and State Board
of Education per Eleventh Amendment). Here, Kentucky’s education department and
KSD, a school it runs via the state board, are defendants and clearly fall within the shroud
of immunity.
The Eleventh Amendment similarly bars damages claims against state officials
sued in an official capacity. See Kentucky v. Graham, 105 S. Ct. 3099, 3107 (1985)
(“This [Eleventh Amendment] bar remains in effect when State officials are sued for
damages in their official capacity.”). Further, a defendant sued in his official capacity for
monetary damages is not considered a “person” subject to suit under § 1983. See Will v.
Mich. Dep’t of State Police, 109 S. Ct. 2304, 2312 (1989) (concluding that a state, its
agencies, and its officials sued in their official capacities for monetary damages are not
considered persons for the purpose of a § 1983 claim); Thomas v. Noder-Love, 621 F.
App’x 825, 831 (6th Cir. 2015) (“It is also well-settled that [Eleventh Amendment] . . .
immunity applies to claims under § 1983, meaning that states and state officials sued in
their official capacity are not considered ‘persons’ under § 1983 and, therefore, cannot be
sued for money damages without the state’s consent.”). “Section 1983 claims are not

12

cognizable against state officials sued in their official capacity.” Doe v. Patton, 381 F.
Supp. 2d 595, 598 (E.D. Ky. 2005) (emphasis removed). Based on these principles, Haun
in his official capacity is plainly entitled to immunity from the federal claim. As a state
official sued in his official capacity, he is not subject to this § 1983 claim. Will, 109 S. Ct.
at 2312.
In sum, Eleventh Amendment immunity shields the Kentucky Department of
Education, the Kentucky School for the Deaf, and Haun in his official capacity from the §
1983 claim.
Immunity on the State Claims – KDE, KSD, Haun (Official Capacity)
The Court generally applies “Kentucky governmental immunity law to
[Plaintiff]’s state law claims.” Shepherd v. Floyd Cnty., 128 F. Supp. 3d 976, 980 (E.D.
Ky. 2015); see Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680-81, 685 (6th Cir. 2013)
(applying federal immunity standard to federal claim and Michigan immunity standard to
state law claim); Chesher v. Neyer, 477 F.3d 784, 796-97 (6th Cir. 2007) (applying Ohio
immunity rules to Ohio-law claims); Doe v. Magoffin Cnty. Fiscal Court, 174 F. App’x
962, 971-72 (6th Cir. 2006) (applying Kentucky immunity law to Kentucky-law claims).
There is no shortage of Kentucky decisions explicating the boundaries of state-law-based
immunity. In fact, questions of immunity have “vexed the courts of the Commonwealth
for decades.” Coppage Constr. Co., Inc. v. Sanitation Dist. No. 1, 459 S.W.3d 855, 859
(Ky. 2015). In the context of this case, however, the boundaries are relatively
straightforward.
In general, “a state agency is entitled to immunity from tort liability to the extent
that it is performing a governmental, as opposed to a proprietary, function.” Yanero v.

13

Davis, 65 S.W.3d 510, 519 (Ky. 2001); Jones v. Cross, 260 S.W.3d 343, 345 (Ky. 2008)
(same).15 In the Commonwealth, operating public schools is a governmental function.
E.g., Clevinger v. Bd. of Educ. of Pike Cnty., 789 S.W.2d 5, 10-11 (Ky. 1990) (“[P]ublic
schools are a responsibility of the state[.]”; “[S]chool funds are the funds of the
Commonwealth[.]”); Wallace v. Laurel Cnty. Bd. of Educ., 153 S.W.2d 915, 916 (Ky.
1941) (“[E]very common school in the state is a state institution controlled and regulated
by the state.”); id. (A “city in maintaining its public school system is acting in a
governmental capacity.”); Commonwealth v. Burnett, 35 S.W.2d 857, 858 (Ky. 1931)
(“Public education has always been regarded as a matter of state concern[.]”); City of
Louisville v. Bd. of Educ. of City of Louisville, 157 S.W. 379, 380 (Ky. 1913)
(Maintenance of schools is an act of “state character.”); see also Hutsell v. Sayre, 5 F.3d
996, 1002 (6th Cir. 1993) (granting UK and its officials immunity and stating, “higher
education has long been recognized as a governmental function”).
Here, as to KSD in particular, the calculus is even stronger. The School carries a
sweeping mandate, apart from the education of its students. It “also serve[s] as the
Statewide Educational Resource Center on Deafness[.]” KRS 167.015(2). This
underscores KSD’s palpable governmental function. The underlying legal principle is
clear: “Governmental immunity extends to state agencies that perform governmental
functions (i.e., act as an arm of the central state government) and are supported by money
from the state treasury.” Autry v. W. Ky. Univ., 219 S.W.3d 713, 717 (Ky. 2007) (finding
that “WKU is a state agency because it serves as a central arm of the state performing the
15

“A proprietary function is of the type normally engaged in by businesses or
corporations and will likely include an element of conducting an activity for profit.”
Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790,
804 (Ky. 2009) (finding that fire departments engage in governmental functions).
14

essential function of educating state citizens at the college level and because it receives
money from the state treasury in support of this function” and holding that “WKU clearly
is entitled to governmental immunity”).16
Based on these principles, KDE, and as a state subdivision, KSD, are entitled to
state-law immunity from the state-law claims. See Williams v. Ky. Dep’t of Educ., 113
S.W.3d 145, 154 (Ky. 2003) (“Appellants could have sued the DOE . . . except for the
fact that [it is] shielded from liability by governmental immunity.”); see also Franks v.
Ky. Sch. for the Deaf, 956 F. Supp. 741, 749 (E.D. Ky. 1996) (dismissing, on immunity
grounds, Kentucky-law negligence claims of failure to provide adequate security and
supervision, as well as failure to exercise reasonable care for the safety of students), aff’d
142 F.3d 360 (6th Cir. 1998).
As to Haun in his official capacity, multiple levels of immunity bar the tort
claims. First, “Eleventh Amendment immunity . . . bars any pendent state-law claims
brought against state officials in their official capacity.” Thomas, 621 F. App’x at 831.
“With respect to the state law claims against the defendant officials in their official
capacity, the Eleventh Amendment provides immunity from suit in federal court.”
Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 520 (6th Cir. 2007). This is so
because “a federal suit against state officials on the basis of state law contravenes the
Eleventh Amendment when—as here—the relief sought and ordered has an impact
directly on the State itself.” Pennhurst State Sch. & Hosp. v. Halderman, 104 S. Ct. 900,
917 (1984). “[A] claim that state officials violated state law in carrying out their official
16

Plaintiff points to no immunity waiver and does not discuss or attempt to apply
Kentucky’s waiver framework. See, e.g., Withers v. Univ. of Ky., 939 S.W.2d 340, 346
(Ky. 1997) (“[P]ersons having negligence claims against the Commonwealth may be
heard in the Board of Claims, but not elsewhere.”); see also KRS 44.072.
15

responsibilities is a claim against the State that is protected by the Eleventh Amendment.”
Id. at 919. Additionally, Kentucky also extends immunity to Haun in his official capacity
in these circumstances. See, e.g., Yanero, 65 S.W.3d at 522 (“[W]hen an officer or
employee of a governmental agency is sued in his/her representative capacity, the
officer’s or employee’s actions are afforded the same immunity, if any, to which the
agency, itself, would be entitled[.]”); Autry, 219 S.W.3d at 717 (“If a state agency is
deemed to have governmental immunity, its officers or employees have official immunity
when they are sued in their official or representative capacity.”); Jones, 260 S.W.3d at
345 (“[O]fficial immunity is absolute when an official’s or an employee’s actions are
subject to suit in his official capacity.”). Based on these clear and controlling principles,
Haun in his official capacity is thus entitled to immunity from the remaining state law
claims.
In sum, the Kentucky Department of Education, the Kentucky School for the
Deaf, and Haun in his official capacity all enjoy immunity regarding the state charges.
Qualified Immunity on the Federal Claim—Haun (Individual Capacity)
“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, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 102 S. Ct. 2727,
2738 (1982)). Under the well-established two-step approach, the Court “consider[s] (1)
whether the facts that a plaintiff has alleged or shown make out a violation of a
constitutional right and (2) whether the right at issue was clearly established at the time
of defendant’s alleged misconduct, although not necessarily in this order.” Wenk v.

16

O’Reilly, 783 F.3d 585, 593 (6th Cir. 2015) (internal quotation marks and alterations
removed); see also Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 493-94 (6th Cir.
2008) (same two-part test). The Court must avoid “a high level of generality” in assessing
the clarity of the right or misconduct. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam) (“The dispositive question is whether the violative nature of particular conduct is
clearly established. . . . This inquiry must be undertaken in light of the specific context of
the case, not as a broad general proposition.” (internal quotation marks omitted) (citing
Brosseau v. Haugen, 125 S. Ct. 596 (2004))). In the summary judgment context, the
Court “view[s] all evidence, and draw[s] all reasonable inferences, in the light most
favorable to the nonmoving party,” here J.B.F. Kent v. Oakland Cnty., 810 F.3d 384, 390
(6th Cir. 2016) (internal alteration removed). “Once a defendant invokes qualified
immunity, the plaintiff bears the burden of showing that (1) the defendant’s acts violated
a constitutional right and (2) the right at issue was clearly established at the time of the
defendant’s alleged misconduct.” Barber v. Miller, 809 F.3d 840, 844 (6th Cir. 2015).
Qualified immunity is immunity from suit itself. Pearson, 129 S. Ct. at 815.
Here, the facts that Plaintiff alleges do not make out a constitutional violation by
Haun. J.B.F.’s particular theory is exclusively grounded in the Fourteenth Amendment’s
Equal Protection Clause. See DE #1-1, at ¶ 38.17 42 U.S.C. § 1983 provides a federal

17

Plaintiff’s brief is perplexing on this point. The Complaint clearly and exclusively
stakes the § 1983 claim in the Equal Protection Clause, DE #1-1, at ¶ 38, but Plaintiff
never attempts to explain how such a constitutional violation occurred, instead writing
about wholly unconnected matters. McQueen v. Beecher, the basis for much of Plaintiff’s
brief on this issue, see DE #25, at 7-9, is a deprivation-of-life due process case. 433 F.3d
460, 463 (6th Cir. 2006). The “state-created-danger doctrine” concerns the “under color
of state law” requirement, not the underlying constitutional violation requirement. Id. at
463-64. As the Court explains, there was no Equal Protection violation here, so there is
no need to address the “under color of state law” prong. The state-created danger
17

cause of action against governmental actors for the deprivation of federal constitutional
rights under color of state law.
“The Equal Protection Clause is essentially a direction that all persons similarly
situated should be treated alike.” Foster v. Michigan, 573 F. App’x 377, 396 (6th Cir.
2014) (internal quotation marks removed). The Sixth Circuit has described the contours:
The Equal Protection Clause of the Fourteenth Amendment commands
that no state shall deny to any person within its jurisdiction the equal
protection of the laws. To state an equal protection claim, a plaintiff must
adequately plead that the government treated the plaintiff disparately as
compared to similarly situated persons and that such disparate treatment
burdens a fundamental right, targets a suspect class, or has no rational
basis.
Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 256 (6th Cir. 2015) (en banc)
(quoting Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir.
2011)) (alterations removed). “The Equal Protection Clause does not forbid
classifications. It simply keeps governmental decisionmakers from treating differently
persons who are in all relevant respects alike.” S.S. v. E. Ky. Univ., 532 F.3d 445, 457
(6th Cir. 2008). “In determining whether individuals are ‘similarly situated,’ a court
should not demand exact correlation, but should instead seek relevant similarity.” Id.
(quoting Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 987 (6th Cir. 2012).
Finally, “[d]isabled persons are not a suspect class for purposes of an equal protection
challenge.” S.S., 532 F.3d at 457. Plaintiff does not assert a burden on a fundamental
right.

construct is a creature of due process, not of equal protection. See McQueen, 433 F.3d at
464 (discussing “the state-created-danger theory of due process liability”). Plaintiff’s
constitutional claim rests only on equal protection values. DE #1-1 (Complaint), at ¶ 38
(“The above-described conduct by Defendants violated the right of the Plaintiff not to be
deprived of equal protection of the laws under the Fourteenth Amendment to the United
States Constitution.”).
18

It is obvious, on this record, that no constitutional violation occurred. Plaintiff
puts forward no proof that the government treated J.B.F. differently than other similarly
situated persons or that any different treatment lacked a rational basis. Indeed, Stivers
admitted that she was unaware of any differential treatment:
Q:

A:

Do you have any information that indicates the policies or
procedures were applied differently to [J.B.F.] than they were
applied to other students in the school?
I don’t know of any other cases.

DE #18-2, at 60. There is simply no indication in this record that the Commonwealth—
through KDE, KSD, or Haun—treated J.B.F. differently than similarly situated
individuals. Because there is no constitutional right violation, there is no underlying basis
for liability, and Haun in his individual capacity is entitled to qualified immunity on the
federal claim. Pearson, 129 S. Ct. at 815.
Perhaps Plaintiff’s equal protection theory is one relating to Haun’s response to
student-on-student harassment, which the Sixth Circuit recognizes in certain situations
can violate the Equal Protection Clause. See, e.g., Shively v. Green Local Sch. Dist. Bd. of
Educ., 579 F. App’x 348, 356-57 (6th Cir. 2014). To establish an equal protection
violation under this theory, Plaintiff must “show either that [Haun] intentionally
discriminated or acted with deliberate indifference.” Id. at 357; see also Stiles ex rel. D.S.
v. Grainger Cnty., Tenn., ___ F.3d ___, ___, No. 15-5438, 2016 WL 1169099, at *12
(6th Cir. Mar. 25, 2016) (“The Sixth Circuit recognizes two methods of proving an equal
protection violation based on a school official’s response to peer harassment: (1)
disparate treatment of one class of students who complain about bullying as compared to
other classes of students, . . . and (2) deliberate indifference to discriminatory peer
harassment[.]”). Deliberate indifference, in this context, “is a clearly unreasonable

19

response in light of the known circumstances.” Shively, 579 F. App’x at 357 (internal
quotation marks omitted). Proceeding under a deliberate indifference theory requires a
plaintiff to prove “that he was subjected to discriminatory peer harassment.” D.S., 2016
WL 1169099, at *12.
J.B.F. does not explicitly raise such a theory or argument, but, regardless, it
plainly fails. Plaintiff offers nothing to suggest either that Haun intentionally
discriminated against J.B.F. in the response to the February 2014 incident or that Haun
acted with deliberate indifference in his response to the incident. Haun’s actions
following the events were not “clearly unreasonable . . . in light of the known
circumstances.” As the Court explains elsewhere in this opinion, nothing shows prior
notice to Haun of any threat, concerning information, or other intelligence signifying to
Haun that J.B. would pose a threat to J.B.F. Haun (and other KSD actors) immediately
responded to the situation, separated and interviewed the students, and instituted remedial
actions. They apparently made several unsuccessful attempts to contact Stivers. While
Stivers may have deeply-held concerns over Haun’s (and the School’s) response, nothing
about it was “clearly unreasonable.” Plaintiff alleges nothing about Haun’s pre-assault
conduct that amounts to deliberate indifference. Haun does not come into the picture until
post-incident, and there is nothing to suggest Haun failed to take steps that effectively
eliminated any further impropriety. J.B.F. does not show that Haun failed to enforce any
school policy or departed from established practices in his treatment of J.B.F. Haun thus
was not deliberately indifferent to J.B.F., and there was thus no Equal Protection Clause
violation. See D.S., 2016 WL 1169099, at *13 (“[Defendants] promptly investigated each
incident of which they were aware, and each took measures within their power to punish

20

the students found culpable and to prevent further episodes of mistreatment. A reasonable
jury could not find these actions exhibited deliberate indifference to [Plaintiff]’s claims of
discriminatory harassment.”).
Qualified Immunity on the State Claims—Haun (Individual Capacity)
In Kentucky,
Qualified official immunity applies to public officers or employees if their
actions are discretionary (i.e., involving personal deliberation, decisions
and judgment) and are made in good faith and within the scope of their
authority or employment. This is intended to protect governmental officers
or employees from liability for good faith judgment calls in a legally
uncertain environment. An act is not ‘discretionary’ merely because some
judgment is used in deciding on the means or method used. However, even
if an act is discretionary, there is no immunity if it violates constitutional,
statutory, or other clearly established rights, or if it is done willfully or
maliciously with intent to harm, or if it is committed with a corrupt motive
or in bad faith. The burden is on the plaintiff to show that the public
official or employee was not acting in good faith.
If the negligent acts of public officers or employees are ministerial, there
is no immunity. An act is ministerial if the duty is absolute, certain, and
imperative, involving mere execution of a specific act based on fixed and
designated facts. If ministerial acts are proper, then the public officer or
employee has official immunity without qualification. Any act done by a
public officer or employee who knows or should have known that his
actions, even though official in nature, would violate constitutional rights
or who maliciously intends to cause injury, has no immunity.
Autry, 219 S.W.3d at 717 (citations removed). Yanero set the boundaries:
Qualified official immunity applies to the negligent performance by a
public officer or employee of (1) discretionary acts or functions, i.e., those
involving the exercise of discretion and judgment, or personal
deliberation, decision, and judgment; (2) in good faith; and (3) within the
scope of the employee’s authority. . . .
Conversely, an officer or employee is afforded no immunity from tort
liability for the negligent performance of a ministerial act, i.e., one that
requires only obedience to the orders of others, or when the officer’s duty
is absolute, certain, and imperative, involving merely execution of a
specific act arising from fixed and designated facts. . . .

21

Once the officer or employee has shown prima facie that the act was
performed within the scope of his/her discretionary authority, the burden
shifts to the plaintiff to establish by direct or circumstantial evidence that
the discretionary act was not performed in good faith.
65 S.W.3d at 522-23 (citation omitted). Kentucky recently confirmed the contours:
Qualified official immunity applies to the negligent performance by a
public officer or employee of (1) discretionary acts (2) in good faith; and
(3) within the scope of the employee’s authority. However, an officer or
employee is afforded no immunity from tort liability for the negligent
performance of a ministerial act. Ministerial acts or duties are those that
require only obedience to the orders of others, or when the officer’s duty is
absolute, certain, and imperative, involving merely execution of a specific
act arising from fixed and designated facts.
Jones, 260 S.W.3d at 345 n.1 (internal quotation marks, citations, and alterations
removed).
Accordingly, public officials are generally not liable for “bad guesses in gray
areas.” Caneyville Volunteer Fire Dep’t, 286 S.W.3d at 810. Thus, “in order to charge
liability, a complainant may not merely allege injury, but must point to a causally related
[v]iolation of a constitutional, statutory, or other clearly established right, or produce
some proof that the action was not in good faith[.]” Id. (internal quotation marks and
citations removed); see also id. (“[A] judgment call by a fire chief as to how, with what
assistance, and in what manner to extinguish a fire is the very definition of a discretionary
act.”).
The question of when a task is ministerial versus discretionary has long
plagued litigants and the courts. Generally, a governmental employee can
be held personally liable for negligently failing to perform or negligently
performing a ministerial act. Part of the rationale for allowing this
individual liability is that a governmental agent can rightfully be expected
to adequately perform the governmental function required by the type of
job he does. To the extent his job requires certain and specific acts, the
governmental function is thwarted when he fails to do or negligently
performs the required acts. But when performance of the job allows for the
governmental employee to make a judgment call, or set a policy, the fact

22

that there is uncertainty as to what acts will best fulfill the governmental
purpose has resulted in immunity being extended to those acts where the
governmental employee must exercise discretion. To some extent, this
says that governing cannot be a tort, but failing to properly carry out the
government’s commands when the acts are known and certain can be.
Stated another way, properly performing a ministerial act cannot be
tortious, but negligently performing it, or negligently failing to perform it,
can be. And the law provides no immunity for such acts, meaning the state
employee can be sued in court. Negligently performing, or negligently
failing to perform, a discretionary act cannot give rise to tort liability,
because our law gives qualified immunity to those who must take the risk
of acting in a discretionary manner. Whether the employee’s act is
discretionary, and not ministerial, is the qualifier that must be determined
before qualified immunity is granted to the governmental employee.
Marson v. Thomason, 438 S.W.3d 292, 296 (Ky. 2014) (citations removed; emphasis in
original). The analysis looks to the dominant nature of the act at issue. Slattery v. J.F.,
___ S.W.3d ___, No. 2013-CA-830-MR, 2015 WL 3424794, at *5 (Ky. Ct. App. May 29,
2015) (“Negligent supervision in the public school setting has been held to be both
discretionary and ministerial based upon varying facts and circumstances.”) (granting
teachers qualified immunity and comparing cases); Haney v. Monsky, 311 S.W.3d 235,
240-41, 243-45 (Ky. 2010) (enforcing instruction to “keep the children in the middle of
the path” was discretionary because it was a “general and continuing supervisory duty”
that “depended upon constantly changing circumstances,” “was largely subjective,” and
“left to the will or judgment of the performer” because it could be done in two or more
lawful ways). Qualified immunity “is more than just a defense; it alleviates the
employee’s or officer’s need even to defend the suit, which is to be dismissed.” Marson,
438 S.W.3d at 298.
Here, Haun plainly performed discretionary acts. A KSD school safety officer
obviously must deliberate and employ his judgment when making decisions. In a fluid

23

and evolving situation, such as investigating the J.B.F.—J.B. interaction here, the course
of action will not be absolute, certain, and imperative, and the facts are not fixed—
indeed, they develop before the officer’s eyes. See, e.g., DE #18-8, at 1 (narrating J.B.F.’s
contemporaneous changes to the story). The facts and the situation are indeterminate, and
Haun is required to react on the fly to changing circumstances. Haun does not merely
obey orders of others. Cf. James v. Wilson, 95 S.W.3d 875, 909-10 (Ky. Ct. App. 2002)
(categorizing teachers’ conduct as discretionary because it “inherently required conscious
evaluation of alternatives, personal reflection and significant judgment”). Haun, too, must
(and did here) personally reflect, evaluate alternatives, and exercise significant judgment.
Here, Haun clearly did not perform a “ministerial task of enforcing a known rule,”
such as, in Yanero, instructing students to wear batting helmets or, in Marson, extending
bleachers each morning. Cf. id. at 910; see also id. (stating that the teachers’ “judgment
may arguably be questionable, particularly with the benefit of hindsight, but applying
such an unrealistic standard is not only unjust, it’s unauthorized.”); Turner v. Nelson, 342
S.W.3d 866, 876 (Ky. 2011) (finding teacher’s supervisory actions discretionary and
granting qualified immunity, stressing the importance of “appropriate leeway to . . .
investigate complaints[,] . . . to form conclusions (based on facts not always known) as to
what actually happened, and ultimately to determine an appropriate course of action”).
Haun’s role—like the principal in Marson and the teacher in Turner—is “so situation
specific” and “requires judgment rather than a fixed, routine performance.” See 438
S.W.3d at 299. Accordingly, “looking out for children’s safety is a discretionary function
. . . exercised most often by establishing and implementing safety policies and

24

procedures.” Id. (emphasis added).18 Marson and related cases all but dictate the result:
Haun, as a school safety officer investigating incidents, forming conclusions based on
facts not always known, determining appropriate courses of action, and implementing
safety policies and procedures, performed discretionary functions. See DE ##20-1, at
Answers to I9, 10, and 14 (describing the investigatory efforts and utilization of Haun’s
“professional judgment”); 25, at 4 (Plaintiff’s brief stating that the Code “places the
decision on how to classify the offense on the School Safety Officer”).
As for the other qualified immunity elements, Plaintiff offers nothing to show that
Haun acted in bad faith or that he violated any clearly established right. “Negligently
performing, or negligently failing to perform, a discretionary act cannot give rise to tort
liability[.]” Marson, 438 S.W.3d at 296. There is utterly no indication that Haun willfully
or maliciously intended to harm Plaintiff. Rowan Cnty. v. Sloas, 201 S.W.3d 469, 481

18

Plaintiff mistakenly relies on the sweeping statement in Williams that “a school teacher
can be held liable for injuries caused by negligent supervision of his/her students,” 113
S.W.3d at 148, for the theory that Haun can be held liable here. The Kentucky Supreme
Court “has repeatedly stated that a teacher’s duty to supervise students is ministerial, as it
requires enforcement of known rules.” Marson, 438 S.W.3d at 301 (distinguishing the
teacher merely performing bus duty from the principal). Merely supervising students and
enforcing known rules in an “established and routine manner” is fundamentally different
from Haun’s duties as the school safety officer. Id. Haun’s actions are more similar to
law enforcement investigating and developing facts and, utilizing judgment, determining
the best course of action. Burnette v. Gee, 137 F. App’x 806, 813 (6th Cir. 2005) (police
investigating possible suicide situation were performing discretionary acts); see also, e.g.,
Lamb v. Holmes, 162 S.W.3d 902, 909 (Ky. 2005) (teachers strip searching students
performed discretionary acts). A manual does not rotely dictate Haun’s every step. Cf.
Mattingly v. Mitchell, 425 S.W.3d 85, 90 (Ky. Ct. App. 2013) (in context of police
initiating a pursuit: “He either violated the procedures or he did not.”). In contrast,
Haun’s role involves acts that “necessarily require the exercise of reason in the adaptation
of means to an end, and discretion in determining how or whether the act shall be done or
the course pursued.” Burnette, 137 F. App’x at 813 (quoting Upchurch v. Clinton Cnty.,
330 S.W.2d 428, 430 (Ky. Ct. App. 1959)); see also Haugh v. City of Louisville, 242
S.W.3d 683, 686 (Ky. Ct. App. 2007) (considering an investigating officer’s need to
make “an on-the-spot judgment call” and affirming the grant of qualified immunity).
25

(Ky. 2006). Further, there is no dispute that Haun acted within the scope of employment
when he investigated and took the actions at issue in this case. Accordingly, because
Haun’s actions were discretionary, made in good faith, and within the scope of his
employment, he is entitled to qualified immunity. Autry, 219 S.W.3d at 717. He can thus
face no liability on the state charges, and the Court must dismiss them. Marson, 438
S.W.3d at 298.19
Alternatively, the Merits—Haun (Individual Capacity)
Although Haun individually is entitled to qualified immunity for the reasons set
forth above, the Court alternatively analyzes the merits.20
Negligence (Counts 2 and 5): 21
In Kentucky, to establish negligence, a plaintiff must prove “that (1) the defendant
owed the plaintiff a duty of care, (2) the defendant breached the standard by which his or
her duty is measured, and (3) consequent injury.” Pathways, Inc. v. Hammons, 113
S.W.3d 85, 88 (Ky. 2003). “‘Consequent injury’ consists of what hornbooks separate into
two distinct elements: actual injury or harm to the plaintiff and legal causation between
19

As the subsequent merits discussion shows, it is exceedingly hard to decipher exactly
what the criticism against Haun even is. The record shows no prior notice of any problem
to Haun (and indeed, there was no prior problem between these students). The record
shows no awareness by Haun of any pertinent history as to J.B. (and indeed, the only
history in the record would not fairly apprize a decision maker of any unreasonable risk).
Haun did an investigation and obviously took steps that prevented any further
misconduct—Plaintiff alleges nothing untoward after the February 4 incident. The
complaints about the timeliness of notice to Stivers do not directly implicate Haun, but in
any event, Plaintiff can cite to no harm or injury related to any delay in Stivers’s date of
awareness.
20
The Court elects against a plenary alternative review for all other claims and
defendants, given the clarity of the immunity analysis. Regardless, the Haun individual
federal qualified immunity analysis incorporates merits consideration.
21
Plaintiff lists a “Sixth Claim for Relief,” DE #1-1, at 12, but no fifth claim. The Court
considers the sixth claim thus to be the fifth. This claim essentially repeats the Count 2
negligence allegations.
26

the defendant’s breach and the plaintiff’s injury.” Id. at 88-89.22 “Duty, the first element,
presents a question of law. Breach and injury, are questions of fact for the jury to decide.
The last element, legal causation, presents a mixed question of law and fact.” Id. at 89
(citations omitted). “The standard of care applicable to a common-law negligence action
is that of ordinary care—that is, such care as a reasonably prudent person would exercise
under the circumstances.” Wright, 381 S.W.3d at 213 (internal quotation marks
removed). The duty landscape is slightly altered in these particular circumstances because
the “special relationship . . . formed between a school district and its students imposes an
affirmative duty on the district, its faculty, and its administrators to take all reasonable
steps to prevent foreseeable harm to its students.” Williams, 113 S.W.3d at 148 (internal
quotation marks omitted); see S.S., 532 F.3d at 459.
Haun mainly protests foreseeability under the applicable Williams duty. DE #20,
at 6-7. Plaintiff’s particular negligence theory is that Haun failed to protect J.B.F. from
harassment, abuse, assaults, and discrimination. DE #1-1, at ¶¶ 40, 53. Plaintiff, in the
negligence section of his brief, fails to mention a single factual basis for the claim as to
Haun. DE #25, at 15-16 (after four paragraphs of law, stating “Defendant Haun is just as
responsible for the negligent acts” but not identifying what those acts are). There is
simply no basis for a negligence finding here, as the record, in the light most favorable to
J.B.F., makes clear. Simply put, on this record, the J.B.F.—J.B. incident was not
foreseeable or chargeable to Haun.

22

Thus, in a different formulation, “[a] common law negligence claim requires proof of
(1) a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) injury to the
plaintiff, and (4) legal causation between the defendant’s breach and the plaintiff’s
injury.” Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012).
27

J.B.F. explicitly said that he initially wanted to be roommates with J.B. J.B.F. had
reported to an unnamed KSD official that two other students—not J.B.—had previously
been mean. This report did not concern J.B. whatsoever. Stivers had no reason to believe
there were altercations, harassment, or abuse between J.B.F. and J.B. prior to the
February 2014 incident. She also had no knowledge of any such occurrences following
the incident.
On the date in question, J.B.F. alerted Jamison and Yance—not Haun—that J.B.
had accessed pornography on his phone. While accessing pornography may breach KSD
rules, this report alone does not put any KSD official (certainly not Haun) on alert that
J.B. would imminently sexually assault J.B.F. It does not suggest personally aggressive
behavior. After the bathroom incident occurred, KSD officials, including Haun,
investigated and interviewed the students and instituted remedial actions. They separated
the students, and evidence indicates that they made several unsuccessful attempts to
contact Stivers.
The posture as to Haun is particularly weak, as to any culpability, because he had
little involvement in the actual incident—at most, he made notes and interviewed the
students as part of an investigation afterward. See DE #20-1, at Answers to I9 and 10.
Jamison and Yance were the primary KSD actors as the events unfolded. Regardless,
there is simply no basis to find that Haun could or did foresee J.B. allegedly sexually
assaulting J.B.F. There were no prior incidents between J.B.F. and J.B. to notify Haun of
potential future trouble.23 J.B.F. said that he wanted to be roommates with J.B. and that

23

Plaintiff’s theory, apparently, is that J.B.’s disciplinary history put Haun on notice that
J.B. would likely “continue his pattern of violent sexual behavior” toward J.B.F. DE #25,
at 8. There are multiple problems with this. First, Kentucky has rejected it: “Presumably,
28

he never told anyone at KSD that he was afraid of J.B. Officials spoke with J.B. after
J.B.F. reported possession of pornography, and, regardless, viewing pornography does
not portend an imminent sexual assault.24 J.B.F. only reported pornography access; he did
not, per his direct testimony, indicate any fear of assault or aggression. When the incident
occurred, Haun and school officials reasonably reacted to it. Post-incident, there were no
further negative J.B.F.—J.B. interactions.
Haun’s basic duty was to take reasonable steps to prevent foreseeable harm to
J.B.F. Williams, 113 S.W.3d at 148. This record indicates that Haun did just that. The
incident was not foreseeable, and, thus, Haun owed no duty to J.B.F. to reasonably

the appellants sought to have the circuit court infer that [a student’s] disciplinary
problems established a pattern which placed the school appellees on notice that he had
violent tendencies. Such an inference is not permissible as there is no allegation that any
individual employee [here, Haun] was aware of [the student’s] entire history and the
school as an entity cannot be imputed with such knowledge.” James, 95 S.W.3d at 908.
Second, even if it were a viable theory, the only proof indicates that J.B. once, in 2009,
“use[d] a wire hanger to put [in] his anus” and at some prior point engaged in preliminary
sexual acts with a girl at home. DE #25-3 (Incident Report), at 1. The “person reporting
incident” was Kevin Kreutzer, who is not involved in this case. The “leader’s” signature
is also not Haun. Noting J.B.’s apparent “very strong sexual desire,” Mr. Kreutzer
reported the incident to counseling and referred J.B. to address “his obsession.” Mr.
Kreutzer, on the same date, reported that J.B. once “played sex with a pillow on his bed.”
DE #25-3, at 2. Neither incident—from 5 years before the J.B.F. events and not
demonstrably known to Haun—would suggest to Haun a need to protect students from
potential J.B. sexual assaults or a J.B. proclivity toward aggressive behavior toward third
parties. The submitted proof from prior incidents simply does not concern assaultive or
aggressive behavior. Finally, the records are not authenticated. See Fed. R. Evid. 901(a).
The Court would thus likely be justified in refusing to rely on them as a decision basis.
See Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (noting the Sixth
Circuit’s “repeated emphasis that unauthenticated documents do not meet the
requirements of Rule 56(e)”). Plaintiff attached no proof whatsoever on the litany of
alleged misconduct listed on DE #25, at 4-5. The Court refuses to consider events
wholly untethered to the record.
24
To the extent Plaintiff suggests that Haun violated certain provision(s) of the KSD
Code of Conduct, the manual is not in evidence, so the Court cannot evaluate any such
argument. Again, the negligence claim is anchored in a preliminary-to-the-incident
failure-to-protect harbor.
29

prevent it.25 No evidence suggests that J.B.’s sexual assault (assuming, at this procedural
stage, the interaction was non-consensual) was foreseeable. After it occurred, Haun and
school officials took reasonable steps to prevent such harm in the future. Thus, although
Haun is immune from the claim, alternatively, there is no basis to find that Haun was
negligent on these facts.
Negligent Training and Supervision (Count 3):
As a starting point, “an employer can be held liable when its failure to exercise
ordinary care in hiring or retaining an employee creates a foreseeable risk of harm to a
third person.” Oakley v. Flor-Shin, Inc., 964 S.W.2d 438, 442 (Ky. Ct. App. 1998). “[A]n
employer may be held liable for the negligent supervision of its employees only if he or
she knew or had reason to know of the risk that the employment created.” Carberry v.
Golden Hawk Transp. Co., 402 S.W.3d 556, 564 (Ky. Ct. App. 2013); see also Booker v.
GTE.net LLC, 350 F.3d 515, 517 (6th Cir. 2003) (“Kentucky law recognizes that an
employer can be held liable for the negligent supervision of its employees.”). Kentucky
conflates the negligent training and negligent supervision standards. Carberry, 402
S.W.3d at 564 (setting forth same standard for “negligent training and supervision”);
Southard v. Belanger, 966 F. Supp. 2d 727, 744-45 (W.D. Ky. 2013).
25

As stated, the question here is really one of foreseeability as a duty element, which
courts regularly decide on summary judgment. See, e.g., James v. Meow Media, Inc., 300
F.3d 683, 691 (6th Cir. 2002) (“Under Kentucky law, it is clear that the existence of a
duty of care to the plaintiff, and its underlying foreseeability inquiry, is a pure question of
law for the court.”). The Court recognizes that generally in Kentucky the question of
breach is for the jury. See, e.g., Lewis v. B & R Corp., 56 S.W.3d 432, 438 (Ky. Ct. App.
2001). However, even on breach, “where only one reasonable conclusion can be
reached,” the Court may decide the issue. Id.; Adkins v. Greyhound Corp., 357 S.W.2d
860, 862 (Ky. 1962) (“[W]hether a party conformed to the standard of care required of
him . . . [is an] issue[] of material fact unless the answer is so clear that there is no room
for difference of opinion among reasonable minds.”); see also, e.g., Simons v. Strong, 978
F. Supp. 2d 779, 785-86 (E.D. Ky. 2013).
30

The Court can make quick work of this thin claim. Haun persuasively argues
against the tort’s applicability to him, DE #20, at 8, and Plaintiff’s brief offers no specific
argument as to the negligent training / supervision allegation. DE #25, at 15-16. Haun
says the he “was not charged with supervising or training the KSD staff responsible for
the dormitory where the February 4, 2014 incident occurred. That is, Haun had no
ministerial duty to train or supervise KSD dorm staff. Furthermore, Haun was not
involved in the hiring process for those individuals.” DE #20, at 8. Plaintiff does not
contest these statements. There is also no suggestion that Haun is “an employer,” as
Kentucky law requires.26 The pleadings and case contain no facts or details concerning
any nexus between Haun and allegedly deficient training or supervision. Even if
immunity did not shield Haun, he plainly faces no liability for negligent training or
supervision.
IIED (Count 4):
The cause of action for the intentional infliction of emotion distress ‘is
intended to redress behavior that is truly outrageous, intolerable and which
results in bringing one to his knees.’ Osborne v. Payne, 31 S.W.3d 911,
914 (Ky. 2000). Four elements must be satisfied in order to state such a
claim: ‘[1] the wrongdoer’s conduct must be intentional or reckless; [2]
the conduct must be outrageous and intolerable in that it offends against
the generally accepted standards of decency and morality; [3] there must
be a causal connection between the wrongdoer’s conduct and the
emotional distress[;] and [4] the distress suffered must be severe.’ Id. at
913-14.

26

Further, there is no indication that Haun knew or had reason to know of any risk that
others’ employment created. Cf. Martin v. Brame, 111 F.3d 131, 1997 WL 163533, at *1
(6th Cir. Apr. 7, 1997) (affirming dismissal when there were “no facts presented that the
two defendant teachers had any basis whatever to foresee the sexual attack that allegedly
occurred” and “no knowledge of the assault as it occurred or any warning or notice that it
might occur”). The fit is imperfect here because the negligent training and supervision
claim so plainly is inapplicable to Haun.
31

S.S., 532 F.3d at 459 (alteration removed). In Kentucky, this tort is a “gap-filler providing
redress for extreme emotional distress in those instances in which the traditional common
law actions did not.” Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky. Ct.
App. 1993) (internal quotation marks removed); Papa John’s Int’l, Inc. v. McCoy, 244
S.W.3d 44, 49 (Ky. 2008) (describing the “outrageous conduct claim” as “a so-called
gap-filler”); Bennett v. Malcomb, 320 S.W.3d 136, 137 (Ky. Ct. App. 2010). The torts of
outrage and IIED are the same. Green v. Floyd Cnty., 803 F. Supp. 2d 652, 655 n.1 (E.D.
Ky. 2011). “The tort of outrage is still a permissible cause of action, despite the
availability of more traditional torts, as long as the defendants solely intended to cause
extreme emotional distress.” Id. “It is for the court to decide whether the conduct
complained of can reasonably be regarded to be so extreme and outrageous as to permit
recovery.” Goebel v. Arnett, 259 S.W.3d 489, 493 (Ky. Ct. App. 2007).
The IIED allegation fails for several reasons. First, Plaintiff offers no proof that
Haun’s conduct was “outrageous and intolerable” or that “it offends against the generally
accepted standards of decency and morality.” Osborne, 31 S.W.3d at 914. Plaintiff’s
specific argument appears to focus on the one-month delay in letter receipt and “Haun’s
failure to take remedial action.” DE ##18-2, at 54; 25, at 15. School officials immediately
responded to and investigated the incident. Officials separated the students, and no
further impropriety occurred between J.B. and J.B.F. The evidence indicates that officials
made numerous attempts to contact Stivers, which Plaintiff does not call into question.
This, little of which involved Haun anyway, is a far cry from “outrageous and
intolerable” conduct that offends generally accepted standards of decency and morality.
The IIED tort requires “more than bad manners” and “hurt feelings.” Childers v. Geile,

32

367 S.W.3d 576, 581 (Ky. 2012). It is “grounded in harassing and abusive behaviors[.]”
Id. It does not cover conduct that is “cold, callous, and lacking sensitivity.” Goebel, 259
S.W.3d at 493. “Liability has been found only where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.
Generally, [a] case [resulting in liability] is one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor, and
lead him to exclaim, ‘Outrageous!’” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781,
789 (Ky. 2004), overruled on other grounds by Toler v. Sud-Chemie, Inc., 458 S.W.3d
276 (Ky. 2015) (regarding substantive defamation requirements); see also Stringer, 151
S.W.3d at 789-90 (comparing factual scenarios where courts found and did not find
outrageousness).27
Plaintiff here presents nothing of the sort that qualifies under the Kentucky
standard. Immediately responding to and remedying a situation, attempting to contact the
guardian, guaranteeing no future incidents, and mailing a letter approximately 30 days
later, even if all involving Haun, simply is not “outrageous and intolerable” and does not
offend generally accepted standards of decency and morality. Neither letter receipt 30
27

For example, courts found outrageous conduct when a priest used his position as a
marriage counselor for a husband to begin a sexual affair with his wife, when an
individual agreed to care for a plaintiff’s long-time companion-animals and then
immediately sold them for slaughter, and when an individual subjected a plaintiff to daily
racial indignities for approximately seven years. Stringer, 151 S.W.3d at 789-90.
However, courts have not found the elements of IIED when an individual told a plaintiff,
who had just delivered a stillborn baby and was hysterical, to “shut up” and that the baby
would be “disposed of” at the hospital, shot and killed a beloved family dog, chained a
high school student to a tree by his ankle and neck, and erected a billboard referencing a
person’s status as a child molester. Id. at 790-91. Even an improper burial does not
qualify as “outrageous and intolerable.” Keaton v. G.C. Williams Funeral Home, Inc.,
436 S.W.3d 538, 545 (Ky. Ct. App. 2013).
33

days after an incident, nor any of Haun’s actions, in these circumstances, would lead an
average member of the community to exclaim, “Outrageous!,” go beyond all possible
bounds of decency, or invoke the truly outrageous or utterly intolerable in a civilized
community.
Additionally, while “a plaintiff cannot maintain both a negligence claim and an
intentional infliction of emotional distress claim based on a single set of facts,” Childers,
367 S.W.3d at 581 (emphasis in original),28 IIED could, in theory, stand alone, but
Plaintiff here offers nothing to show that Haun “solely intended to cause extreme
emotional distress.” Green, 803 F. Supp. 2d at 655. Indeed, Plaintiff’s theory of the
original incident included allegations of physical harm by J.B. (the sexual assault and key
punching) and Defendants’ alleged negligent failure to protect J.B.F. from such violence.
The theory thus independently fails on this ground. There is zero evidence of Haun
having any bad or ill intent.
Finally, Plaintiff offers no expert proof on the degree or cause of any emotional
harm, another likely fatal flaw to any IIED theory here. See, e.g., MacGlashan v. ABS
Lincs KY, Inc., 84 F. Supp. 3d 595, 605 (W.D. Ky. 2015) (applying Osborne v. Keeney,
399 S.W.3d 1 (Ky. 2012) to IIED claim: “This Court joins the latter group in holding
Osborne’s requirement for expert testimony is limited to NIED and intentional infliction
28

“[W]hile the intentional infliction of emotional distress could be pleaded alternatively,
a litigant cannot prevail on both a negligence claim and an intentional infliction of
emotional distress claim on the same set of facts.” Childers, 367 S.W.3d at 581; see also
id. at 582-83 (“Thus the notion that intentional infliction of emotional distress is a gapfiller tort is correct. It is also correct that it is a stand-alone tort under the right facts. This
is not to say that it cannot be pleaded alternatively, but there can be only one recovery on
a given set of facts. . . . There can be only one recovery for emotional distress on the
same acts. It will either be caused as a result of an injury done to the plaintiff physically
or it will be caused by outrageous conduct the purpose of which is to inflict emotional
distress.”).
34

of emotional distress claims.”); see also, e.g., White v. Bourbon Cmty. Hosp., LLC, No.
5:14-CV-79-REW, 2016 WL 208303, at *9 (E.D. Ky. Jan. 15, 2016). The failure “to
present sufficient affirmative evidence concerning any severe emotional distress” is “fatal
to [an] IIED claim.” Keaton, 436 S.W.3d at 545. For these reasons, even if Haun was not
immune from suit, he did not actionably inflict emotional distress.
IV.

CONCLUSION
“The most sensitive nerve in the human body is the parental nerve.” Eva N., 741

F. Supp. at 627 (Bertelsman, J., quoting Swinford, J.). This is surely no less true for a
caring guardian such as Stivers. The Court is not unmindful of the potent human element
present in this case, but however unfortunate the events leading to this suit may be, for
the foregoing reasons, every claim against each Defendant fails as a matter of law. The
Court thus fully GRANTS DE #2029 and will enter a separate Judgment.
This the 3d day of June, 2016.

29

The Court also GRANTS, as unopposed, DE #19. See DE #26 (Plaintiff response
stating no objection). The Court did not consider as part of this ruling, and Plaintiff did
not in any way rely on in argument, Dr. Barzman’s notes summary. See, e.g., Nora
Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (“On a
summary judgment motion, the district court properly considers only evidence that would
be admissible at trial.”); Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007)
(“Evidence submitted in opposition to a motion for summary judgment must be
admissible.” (alteration removed)); McGuire v. Mich. Dep’t of Cmty. Health, 526 F.
App’x 494, 496-97 (6th Cir. 2013) (citing Bailey v. Floyd Cnty. Bd. of Educ., 106 F.3d
135, 145 (6th Cir. 1997) (when the nonmoving party bears the trial burden, its proffered
evidence need not be in admissible form, but its content must nevertheless be
admissible)).
35