King et al v. Curtis et al

Filing 300

OPINION AND ORDER APPROVING AND ADOPTING REPORTS AND RECOMMENDATIONS 285 and 286 ; Third-party defendant PCMI's motion for summary judgment 214 is GRANTED and the Third-party complaint is DISMISSED; Lakewood Defendants' motion for summ ary judgment 215 is GRANTED IN PART and DENIED IN PART; Plaintiffs' motion for summary judgment 217 is DENIED; Unknown Defendants "James Roe 1-10" are DISMISSED without prejudice; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MADISON KING, et al.,
Plaintiffs,

Case No. 1:14-cv-403

v

HON. JANET T. NEFF

CHAD CURTIS, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
Pending before the Court are the parties’ objections to an October 27, 2016 Report and
Recommendation (R&R, Dkt 285) and a November 1, 2016 Report and Recommendation (R&R,
Dkt 286) of the Magistrate Judge. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P.
72(b)(3), the Court has performed de novo consideration of those portions of the Reports and
Recommendations to which objections were made. For the reasons that follow, the Court denies the
objections and approves and adopts both Reports and Recommendations.
I. BACKGROUND
Plaintiffs filed this case on April 11, 2014, alleging that Defendant Chad Curtis sexually
assaulted Plaintiffs while Curtis was a substitute teacher and worked in Lakewood High School’s
weight room. Defendant Curtis was convicted by a jury of six charges of criminal sexual conduct
involving three of the four Plaintiffs and is currently serving a 7–15 year prison sentence (Dkt 1,
Compl. ¶ 3). Against Defendant Curtis, Plaintiffs allege Battery (Count I) and Intentional Infliction
of Severe Emotional Distress (IIED) (Count II). Against Defendant Lakewood Public Schools and

Defendant Lakewood Public Schools Board of Education, whom the Magistrate Judge collectively
references as “the Lakewood Defendants,” Plaintiffs allege a Violation of the Educational
Amendments of 1972 (Title IX), 20 U.S.C. § 1981 et seq. (Count III). Last, against Defendant
Lakewood Public Schools, Defendant Lakewood Public Schools Board of Education and “James
Roes 1-10,” Plaintiffs allege a violation of Plaintiffs’ constitutional rights, brought under 42 U.S.C.
§ 1983 (Count IV). The Lakewood Defendants and the ten unidentified individuals, in turn, filed
a Third-Party Complaint against Defendant Professional Contract Management, Inc. (PCMI) (Dkt
107).
On September 18, 2015, Plaintiffs filed a “Motion for Partial Summary Judgment Against
Defendant Curtis on Liability” (Dkt 122), arguing that Curtis’ “criminal convictions established
certain facts beyond a reasonable doubt which also establish each and every fact necessary to prove
liability against Defendant Curtis on these [civil] claims, leaving only damages and the extent of
Plaintiffs’ emotional distress to be resolved by trial” (Dkt 123 at 2-3). On December 8, 2015, the
Magistrate Judge issued a Report and Recommendation, recommending that this Court grant
Plaintiffs’ motion as to their Battery claims but deny the motion as to their IIED claims (R&R, Dkt
190 at 9). This Court subsequently denied Plaintiffs’ objections and adopted the Magistrate Judge’s
Report and Recommendation (Op. & Order, Dkt 207).
In March 2016, the parties filed the following three dispositive motions: Third-Party
Defendant PCMI’s Motion for Summary Judgment (Dkt 214), the Lakewood Defendants’ Motion
for Summary Judgment (Dkt 215), and Plaintiffs’ Motion for Summary Judgment (Dkt 217). On
October 27, 2016, the Magistrate Judge issued a Report and Recommendation (R&R, Dkt 285),
recommending that Third-Party Defendant PCMI’s motion be granted. On November 1, 2016, the
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Magistrate Judge issued another Report and Recommendation (R&R, Dkt 286), recommending that
the Lakewood Defendants’ Motion for Summary Judgment be granted in part and denied in part, and
Plaintiffs’ Motion for Summary Judgment be denied. Now pending before the Court are the
Lakewood Defendants’ November 10, 2016 objections (Dkt 287), to which PCMI filed a response
(Dkt 295); Plaintiffs’ November 15, 2016 objections (Dkt 289), to which the Lakewood Defendants
filed a response (Dkt 296); and the Lakewood Defendants’ November 15, 2016 objections (Dkt 290),
to which Plaintiffs filed a response (Dkt 297).
II. DISCUSSION
A. Standard of Review
“[A] judge may designate a magistrate judge to hear and determine any pretrial matter
pending before the court,” with certain exceptions, including “a motion ... for summary judgment.”
28 U.S.C. § 636(b)(1)(A). “[A] judge may also designate a magistrate judge to conduct hearings,
including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and
recommendations for the disposition, by a judge of the court, of any motion excepted in
subparagraph (A). . .” 28 U.S.C. § 636(b)(1)(B).
“Within fourteen days after being served with a copy, any party may serve and file written
objections to such proposed findings and recommendations as provided by rules of court.” 28 U.S.C.
§ 636(b)(1). See also FED. R. CIV. P. 72(b)(2) (Objections). “Any party may respond to another
party’s objections within fourteen (14) days after being served with a copy thereof.” W.D. Mich.
LCivR 72.3(b) (Review of case-dispositive motions). “A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to
which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the
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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). See also FED.
R. CIV. P. 72(b)(3) (Resolving Objections).
B. October 27, 2016 Report and Recommendation (Dkt 285)
The Magistrate Judge recommends that this Court grant Third-Party Defendant PCMI’s
motion for summary judgment of the Third-Party Complaint. The Magistrate Judge reasoned that
to the extent that the Lakewood Defendants face liability in this matter under Title IX for failure to
properly respond to Curtis’ misconduct, their liability is the result of the wrongful acts by the
District, its employees or agents, and the express terms of the parties’ indemnification agreement
renders the promise of indemnity inapplicable to liability that results from wrongful acts by the
District or its employees or agents (Dkt 285 at PageID.4835).
In their objections, the Lakewood Defendants assert that the Magistrate Judge erred in failing
to “construe[] broadly” the contract language (Dkt 287 at PageID.4871-4872). The Lakewood
Defendants assert that their wrongful conduct, if any, is, in fact, “related to” Curtis’ misconduct
inasmuch as but for Curtis’ misconduct, the Lakewood Defendants “would not have had to take any
steps to investigate or rectify his misconduct” (id. at PageID.4872).1
The Lakewood Defendants’ objection is properly denied.
The Magistrate Judge considered the Lakewood Defendants’ contract construction
arguments, which were thoroughly presented in the underlying motion papers. The Lakewood

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The Lakewood Defendants also argue that because the Magistrate Judge indicates that the
Lakewood Defendants’ liability is limited to their “response” to Curtis’ misconduct, PCMI remains
contractually obligated to indemnify the Lakewood Defendants for any damages arising before April
27, 2012, i.e., any damages before the date the police arrived at the school to investigate Curtis’
misconduct (Dkt 287 at PageID.4873). However, the Lakewood Defendants do not identify these
damages, and the Court finds the argument misplaced, given the resolution of the motions at bar.
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Defendants’ objection demonstrates only their disagreement with the Magistrate Judge’s analysis,
and not any factual or legal error by the Magistrate Judge. Accordingly, the objection supplies no
basis for rejecting the Magistrate Judge’s recommendation to grant PCMI’s motion.
C. November 1, 2016 Report and Recommendation (Dkt 286)
1.

Title IX (Count III)
a.

Plaintiffs’ Teacher-to-Student Harassment Claim

The parties do not dispute that to prevail on their claims of teacher-to-student sexual
harassment, Plaintiffs must establish that “(1) an official with the authority to institute corrective
measures on the recipient’s behalf; (2) had actual knowledge of the harassment ... ; and (3) the
recipient’s response to such knowledge exhibited deliberate indifference” (R&R, Dkt 286 at
PageID.4849). The Magistrate Judge found that Defendant Lakewood Public Schools first possessed
actual knowledge of Defendant Curtis’ misconduct on April 27, 2012, and that Defendant Lakewood
Public Schools Board of Education possessed actual knowledge of Defendant Curtis’ misconduct
“no sooner than April 27, 2012, and no later than May 2, 2012” (id. at PageID.4853). Defining
“deliberate indifference” as existing where the “recipient entity’s response to the harassment [is]
clearly unreasonable in light of the known circumstances,” the Magistrate Judge further determined
that “whether Defendants responded to Curtis’ misconduct with deliberate indifference is a question
for a jury to resolve” (id. at PageID.4842, 4857). The Magistrate Judge therefore recommends that
the Lakewood Defendants’ motion and Plaintiffs’ motion both be denied as to Plaintiffs’ teacher-tostudent Title IX claim (id. at PageID.4857).

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(1)

Official with Authority

As noted by the Magistrate Judge, the parties did not dispute the first element (R&R, Dkt 286
at PageID.4849).
(2)

“Actual Knowledge”

Plaintiffs object to the Magistrate Judge’s actual-knowledge analysis, arguing that the
Magistrate Judge erred in determining that the Lakewood Defendants had no “actual knowledge” of
Curtis’ sexual harassment against students before April 27, 2012 (Dkt 289 at PageID.4879-4881).
Relying on Williams v. Paint Valley Local Sch. Dist., 400 F.3d 360, 363 (6th Cir. 2005), Plaintiffs
argue that the Magistrate Judge improperly applied an “overly heightened ‘actual knowledge’ or
‘actual notice’ standard,” a standard that Plaintiffs assert is contrary to the “substantial risk” standard
applied in the Sixth Circuit (id. at PageID.4881-4885). Plaintiffs argue that the issue of pre-April
27, 2012 actual knowledge is a factual question that should be left to a jury (id. at PageID.48854888). Plaintiffs also assert that even if this Court adopts the overly heightened standard proposed
in the Report and Recommendation, the three incidents described therein are enough to show actual
knowledge and that the issue of pre-April 27, 2012 actual knowledge should be submitted to a jury
(id. at PageID.4889).
In response, the Lakewood Defendants argue that Plaintiffs advocate for what is essentially
a “constructive notice standard,” which has been soundly rejected as an appropriate standard for
holding a school district liable under Title IX (Dkt 296 at PageID.4944). The Lakewood Defendants
point out that the Sixth Circuit in Williams was addressing the adequacy of a jury instruction, an
inquiry that did not lead the appellate court to expressly modify the “actual notice” standard
articulated by the Supreme Court but merely to conclude that the jury instruction adequately
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informed the jury of the relevant considerations for making its decision (id. at PageID.4946-4947).
Plaintiffs’ objection is properly denied.
Plaintiffs’ argument about the second element of their claim was thoroughly presented in the
underlying motion papers, and the Magistrate Judge carefully considered Plaintiffs’ reliance on
Williams therein (R&R, Dkt 286 at PageID.4846-4849). The Magistrate Judge rejected Plaintiffs’
reliance on Williams, pointing out, as a threshold matter, that the inquiry before the Williams court
was to decide whether the jury instruction given merited a new trial (id. at PageID.4846). The
Magistrate Judge pointed out that in affirming the jury verdict, the Williams court did not explain
or justify its citation to the Eighth Amendment deliberate indifference standard and that the Williams
court inaccurately characterized its previous decision in Vance v. Spencer County Public School
Dist., 231 F.3d 253 (6th Cir. 2000) (id. at PageID.4847-4848). Plaintiffs’ objection reveals only their
disagreement with, but no error in, the Magistrate Judge’s analysis.
Further, for the reasons stated more fully by the Lakewood Defendants in their response, the
Court agrees that the Magistrate Judge’s determination—that inclusion of the “substantial risk”
standard in the context of analyzing the “actual knowledge” element is neither persuasive nor
consistent with controlling Supreme Court authority—is well supported in the case law. See Davis
v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999) (“the district could be liable for damages
only where the district itself intentionally acted in clear violation of Title IX by remaining
deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge”);
Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 492 (6th Cir. 2006) (“[E]ven if Clarke had
constructive notice of Crawford’s inappropriate interactions with Jill, this in no way translates into
actual notice of widespread harassment such that Clarke can be deemed to have actually known that
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plaintiff was subject to a hostile environment.”); Winzer v. Sch. Dist. of Pontiac, 105 F. App’x 679,
681 (6th Cir. 2004) (“We have followed the Supreme Court’s lead, as we must, in requiring actual
knowledge of student-on-student sexual harassment in Title IX cases”); Vance v. Spencer Cty. Pub.
Sch. Dist., 231 F.3d 253, 258 (6th Cir. 2000); Soper v. Hoben, 195 F.3d 845, 854-855 (6th Cir.
1999).
Last, Plaintiffs’ objection does not reveal error by the Magistrate Judge in applying the
standard to the facts of this case to determine that Defendant Lakewood Public Schools first
possessed actual knowledge of Defendant Curtis’ misconduct on April 27, 2012 and that Defendant
Lakewood Public Schools Board of Education possessed actual knowledge of Defendant Curtis’
misconduct no sooner than April 27, 2012. For the reasons stated more fully by the Magistrate
Judge, as well as Defendants, the Court agrees that the relevant case law demonstrates that the
“actual notice” standard requires that school officials be aware of significantly more indicia of
harassment than the three incidents upon which Plaintiffs rely in this case.
(3)

“Deliberate Indifference”

Conversely, the Lakewood Defendants object to the Magistrate Judge’s analysis of the third
element—deliberate indifference. The Lakewood Defendants argue that because Plaintiffs were not
subject to further sexual harassment after the Lakewood Defendants acquired actual knowledge, the
Lakewood Defendants’ response cannot, as a matter of law, constitute deliberate indifference to the
harassment (Dkt 290 at PageID.4906-4909). The Lakewood Defendants argue that the Magistrate
Judge mischaracterized the record as it relates to the District’s Title IX investigation and emphasizes
that, in any event, the District’s putative failure to investigate cannot result in a deliberate
indifference finding where the District took immediate and effective steps to end the harassment (id.
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at PageID.4909-4913).
In response, Plaintiffs argue, in pertinent part, that the Magistrate Judge correctly determined
that the Lakewood Defendants’ motion for summary judgment should be denied with respect to
Plaintiff’s post-April 27, 2012 Title IX claim, as that is the date upon which law enforcement
officials informed Lakewood Defendants that Plaintiffs had reported Curtis’ sexual abuse (Dkt 297
at PageID.4967-4972). Plaintiffs opine that the Lakewood Defendants’ objection should be rejected
because they merely recite legal arguments already made in the school’s briefing (id. at
PageID.4967).
The Lakewood Defendants’ objection is properly denied.
The Lakewood Defendants’ arguments were thoroughly presented in the underlying motion
papers. The Magistrate Judge carefully considered their arguments relevant to the record and the
pertinent legal standard (R&R, Dkt 286 at PageID.4854-4856). The Court agrees with the Magistrate
Judge’s assessment that while school officials may not have entirely failed to act after April 27,
2012, “the proportionality of the school’s response in light of available information lies at the heart
of the indifference analysis” (id. at PageID.4854). The Court agrees that whether Defendants
responded to Curtis’ misconduct with deliberate indifference is a question for a jury to resolve.
In sum, the parties’ cross-objections supply no bases for rejecting the Magistrate Judge’s
recommendation to deny both motions as to Plaintiffs’ teacher-to-student Title IX claim.
b.

Plaintiffs’ Student-to-Student Harassment Claim

The Magistrate Judge recommends that the Lakewood Defendants’ motion be granted and
Plaintiffs’ motion be denied as to Plaintiffs’ student-to-student (or peer-to-peer) Title IX claim. The
Magistrate Judge found that Plaintiffs’ evidence “neither establishes nor supports the inference that
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the conduct of which Plaintiffs complain was based on Plaintiffs’ gender” (Dkt 286 at PageID.4860).
Instead, the Magistrate Judge found that the evidence reveals that the offending students were
“motivated by personal animus towards Plaintiffs for having reported to police and school officials
Defendant Curtis’ misconduct” (id.).
In their objections, Plaintiffs argue that the Magistrate Judge erred in determining that the
students’ post-April 27, 2012 misconduct against Plaintiffs did not constitute prohibited sexual
harassment (Dkt 289 at PageID.4889-4893). Plaintiffs opine that “there is no question that students’
comments were ‘sexual’ because they referenced Plaintiffs’ reports of sexual assault and often
contained and/or consisted of sexually-loaded terms” (id. at PageID.4893). Plaintiffs contend that
the continuing harassment that students inflicted upon Plaintiffs was prohibited sexual harassment
because it “all involved sex,” whether the harassment “(i) was based upon Defendant Curtis’s
physical sexual assault; (ii) referenced Curtis’s sexual assault; (iii) consisted of sexually-loaded or
accusatory name-calling like ‘bitch,’ ‘slut,’ or ‘liar;’ or (iv) was inflicted upon Plaintiffs because they
reported sexual assault” (Dkt 297 at PageID.4970). Plaintiffs assert that if there is any question on
this issue, then it should be submitted to a jury (Dkt 289 at PageID.4893).
In pertinent part, the Lakewood Defendants assert in response that the Magistrate Judge
correctly articulated and applied the standard for Title IX liability for peer-to-peer harassment (Dkt
296 at PageID.4952-4955).
Plaintiffs’ objection is properly denied.
Under Title IX, “[n]o person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681(a) [emphasis added].
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Plaintiffs do not disagree with the premise that the harassment giving rise to a Title IX claim must
be undertaken “on the basis of sex” (R&R, Dkt 286 at PageID.4859). However, the Court finds
Plaintiffs’ argument—that the harassment was prohibited under Title IX because it “all involved
sex”—represents an improper construction of the phrase “on the basis of sex.” “[T]he first element
requires that the student be harassed on the basis of his or her sex,” Tumminello v. Father Ryan High
Sch., Inc., No. 16-5165, 2017 WL 395106, at *2 (6th Cir. Jan. 30, 2017) [emphasis added], not
merely that the harassment “all involved sex.” Plaintiffs’ allegations of harassment do not reveal
that Plaintiffs were harassed because of their classification as females. The Court agrees with the
Magistrate Judge’s conclusion that the harassment does not fall within the ambit of Title IX.
In short, Plaintiffs’ objection supplies no basis for rejecting the Magistrate Judge’s
recommendation to grant the Lakewood Defendants’ motion and deny Plaintiffs’ motion as to
Plaintiffs’ student-to-student (or peer-to-peer) Title IX claim.
c.

Retaliation

Plaintiffs clarify that they did not assert a Title IX retaliation claim, and that the Court need
not address any such claim (Dkt 289 at PageID.4879 n.1).
2.

Section 1983 (Count IV)
The Magistrate Judge recommends that with respect to Plaintiffs’ failure-to-train § 1983

claims against Defendant Lakewood Public Schools, Plaintiffs’ motion for summary judgment be
denied and Defendants’ motion for summary judgment be denied (Dkt 286 at PageID.4866). To the
extent that Plaintiffs asserted a failure-to-train claim against Defendant Lakewood Public Schools
Board of Education, the Magistrate Judge recommends that Plaintiffs’ motion for summary judgment
be denied and Defendants’ motion for summary judgment be granted (id. at PageID.4867).
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In their objections to the Magistrate Judge’s § 1983 analysis, Plaintiffs merely “urge this
Court to grant summary judgment on their § 1983 claim ... for all of the reasons fully set forth in
Plaintiffs’ summary judgment briefing” (Dkt 289 at PageID.4894). This district’s local rules require
an objecting party to “specifically identify the portions of the proposed findings, recommendations
or report to which objections are made and the basis for such objections.” W.D. Mich. LCivR
72.3(b). The purpose of filing objections is not served if the district court is required to conduct a
complete, de novo review of all of the motion papers that were considered by the magistrate judge.
Because Plaintiffs’ objections do not address, let alone identify any error in, the Magistrate Judge’s
§ 1983 analysis, their “objection” is properly denied.
3.

Summary
Therefore, having determined the objections lack merit, this Court adopts the Magistrate

Judge’s Reports and Recommendations (Dkts 285 and 286) as the Opinion of this Court. Further,
the Court will dismiss unknown Defendants “James Roe 1–10” for Plaintiffs’ failure to timely
identify these parties. Barring the parties’ ability to achieve a settlement at the conference with the
Magistrate Judge next month, this case will proceed to trial on the following remaining claims:
I.

Battery—damages only (against Defendant Curtis);

II.

Intentional Infliction of Severe Emotional Distress (against Defendant
Curtis);

III.

Title IX Teacher-to-Student Harassment (against Defendant Lakewood Public
Schools and Defendant Lakewood Public Schools Board of Education); and

IV.

Section 1983 Failure-to-Train (against Defendant Lakewood Public Schools).

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Accordingly:
IT IS HEREBY ORDERED that the Lakewood Defendants’ objections (Dkt 287) are
DENIED, and the Magistrate Judge’s Report and Recommendation (Dkt 285) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Third-Party Defendant PCMI’s Motion for Summary
Judgment (Dkt 214) is GRANTED for the reasons stated in the Report and Recommendation, and
the Third-Party Complaint is DISMISSED.
IT IS FURTHER ORDERED that Plaintiffs’ objections (Dkt 289) and the Lakewood
Defendants’ objections (Dkt 290) are DENIED, and the Magistrate Judge’s Report and
Recommendation (Dkt 286) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Lakewood Defendants’ Motion for Summary
Judgment (Dkt 215) is GRANTED IN PART and DENIED IN PART for the reasons stated in the
Report and Recommendation.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment (Dkt 217) is
DENIED for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that Unknown Defendants “James Roe 1-10” are
DISMISSED without prejudice for Plaintiffs’ failure to timely identify these parties.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Date: March 1, 2017

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