Doe et al v. Grandville School District et al

Filing 80

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

JOHN DOE and JANE DOE, on
behalf of JIMMY DOE, their
minor child,
Plaintiffs,
v.

Case No. 1:18-CV-309

GRANDVILLE PUBLIC SCHOOL
DISTRICT, et al.,

HON. GORDON J. QUIST

Defendants.
__________________________/

OPINION
Plaintiffs, John and Jane Doe, filed a complaint for themselves and on behalf of Jimmy Doe,
their minor child, alleging claims against the Grandville Public School District and individual
Defendants Ron Caniff, Roger Bearup, Scott Merkel, Tonia Shoup, and Hillary Huberts, pursuant
to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (Count I); 42 U.S.C. § 1983
for violation of Jimmy’s rights to personal security and bodily integrity and equal protection (Counts
II and III); and for gross negligence (Count IV). All claims arose out Jimmy’s kindergarten
classmates’ taking inappropriate photographs of Jimmy on their school-issued iPads.
On September 9, 2018, the Court dismissed the official capacity claims under § 1983 against
all individual Defendants, the gross negligence claim against the District, and the individual claims
of John Doe and Jane Doe. (ECF No. 33.) The remaining claims were Jimmy’s Title IX and § 1983
claims against the District and his gross negligence claims against individual Defendants Tania
Shoup, the Principal, and Hillary Huberts, Jimmy’s kindergarten teacher. Defendants Shoup and

Huberts filed a motion for summary judgment. (ECF No. 78.) In response to that motion, Plaintiffs
stipulated to dismiss Jimmy’s claims against Shoup and Huberts. (ECF Nos. 75, 78.)
The District moves for summary judgment on the remaining Title IX and § 1983 claims.
Plaintiffs have responded to the motion, and the District has filed a reply. The Court heard oral
argument on July 9, 2019.
For the following reasons, the Court will grant the District’s motion and dismiss the
remaining claims with prejudice.
I. FACTS
Jimmy was a student in Huberts’s kindergarten class at Century Park Learning Center during
the 2014–15 school year. Early in the school year, Jane Doe decided that, because of his young age,
Jimmy would return for another year of kindergarten at Century Park for the 2015–16 school year.
(ECF No. 58-10 at PageID.503–04.)
For the first time the District provided iPads to its kindergarten students during the 2014–15
school year. (ECF No. 58-8 at PageID.434.) All student iPads were run through an internet filtering
system that prevented students from accessing inappropriate internet content and websites, as well
as web-based email and cloud-based storage services. (ECF No. 58-6 at pageID.418.) Student use
of the iPads was subject to the District’s Acceptable Use Policy of Technology Resources. (ECF
No. 58-14.) Teacher training was provided pursuant to the Technology Readiness Infrastructure
Grant using modules developed by the Michigan Department of Education. The District provided
grade-specific technology goals that were formulated by the International Society for Technology
and Education Standards, which included digital citizenship. (ECF No. 58-15 at PageID.670.)
In December 2014, and again in December 2015, the Children’s Assessment Center made
a presentation to students at Century Park about inappropriate touching and reporting of such
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conduct. In addition to hearing the lessons, students were given worksheets to take home to review
with their parents. (ECF Nos. 58-2 at PageID.318; 58-3 at PageID.371; 58-10 at PageID.510–11,
114–15.)
On April 21, 2015, Huberts discovered that a group of boys had inappropriate pictures of
students, including Jimmy, on their iPads. That day, the students were working on their iPads in
various places around the kindergarten classroom. As Huberts was walking around the room, she
noticed some boys who had suspicious looks on their faces. (ECF No. 58-9 at PageID.460.)
Huberts took an iPad from one of the students to see what he was working on and noticed an
inappropriate picture of another student on the iPad. Huberts immediately collected all her other
students’ iPads in a manner intended to avoid drawing the students’ attention to what she had
discovered. (Id.; ECF No. 58-3 at PageID.372.) She looked at each iPad to confirm that there were
no other inappropriate photographs. (ECF No. 58-9 at PageID.461.) Hubert found at least two
pictures, one of Jimmy, with his pants pulled down, bent over spreading his butt cheeks with his
hands, with his head turned facing the camera and smiling. (ECF No. 58-3 at PageID.372.) Another
picture was a close-up shot of a penis. (ECF No. 58-9 at PageID.461.) No other picture identified
a student. The pictures did not show Jimmy being touched by any classmate, nor did they indicate
sexual harassment. (ECF No. 58-3 at PageID.372.)
Huberts notified Principal Shoup of the photographs and gave Shoup the iPads. Shoup
determined that four students had inappropriate pictures on their iPads and that the photographs were
dated March 31, 2015. (ECF No. 58-2 at PageID.319.) On April 22, 2015, Shoup investigated the
picture-taking activity by speaking with the students involved. (ECF No. 58-2 at PageID.319.)
Huberts facilitated Shoup’s interviews to avoid drawing attention to the students being interviewed.
9ECF No. 58-3 at PageID.372.) Jimmy told Shoup that it was his idea to pull his pants down. (ECF
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No. 58-2 at PageId.319.) Jimmy said that he had pulled his pants down twice and then stopped after
he talked with his mom about “the privates.” (ECF No. 58-8 at PageID.433.) Jimmy said that the
hands on his bottom in the picture were his own, and he did not indicate that he had been coerced,
threatened, or touched by a classmate. (ECF No. 58-2 at PageID.319.) Jimmy confirmed to both
Jane Doe and John Doe that he had told Shoup that it was his idea to pull his pants down. (ECF No.
58-10 at PageID.538; ECF No. 58-13 at PageID.651.) Each of the other students whom Shoup
interviewed confirmed that it was Jimmy’s idea to pull his pants down. (ECF No. 58-2 at
PageID.319.)
In addition to interviewing the students, Shoup contacted the parents of each student
involved, filed a report with the Michigan Department of Human Services, and contacted the
Wyoming Police Department, which instructed Shoup to ensure that the pictures were deleted from
the iPads. (Id. at PageID.320.) Shoup complied by having the District’s Information Systems
Coordinator/Network Administrator delete the pictures. (Id.; ECF No. 58-6 at PageID.418.) In
addition, Shoup and Huberts met with Jane Doe, who expressed concern that students may be talking
about the photographs. (ECF No. 58-2 at PageID.320.) During the meeting Jane Doe did not
indicate that Jimmy had been inappropriately touched or sexually harassed. (Id.)
Jane and John Doe chose to keep Jimmy home for the remainder of the 2014–15 school year.
Jimmy returned for the 2015–16 school year as a student in Huberts’s kindergarten class, as Jane
and John Doe had originally planned. During this school year, there was no incident or report of
harassment or bullying.1

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Shoup testified that in September 2015, a parent of a student in Huberts’s kindergarten class reported that three
students, including Jimmy, pulled down their pants during recess. Shoup investigated the incident and determined that
no student involved, including Jimmy, was harassed by other students. (ECF No. 58-2 at PageID.320.)

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On or about August 26, 2016—shortly before Jimmy was to begin the first grade at Century
Park—Jimmy told his mother that he had been touched in 2015, and she was “[s]urprised.” (ECF
No. 58-11 at PageID.596.) Jane Doe had not asked Jimmy about what had happened in April 2015
until that time. (ECF No. 58-10 at PageID.538.) Jimmy testified that around spring break in 2015,
several of his classmates took photographs and inappropriately touched each other. (ECF No. 58-11
at PageID.608–09.) Jimmy said that they were able to avoid detection because they had “the perfect
cover”—the teacher could not see them. (Id. at PageID. 576.)
Jane Doe informed Shoup of Jimmy’s allegations, and Shoup met with Jane and John Doe
on August 29, 2016. During the meeting, Jane and John Doe informed Shoup that Jimmy had told
them about first and second graders asking him on the playground to show them his privates. They
also told Shoup of Jimmy’s recent claim that he had been touched by classmates in connection with
the iPad pictures. (ECF No. 58-2 at PageID.321–22.) Shoup thereafter contacted the District’s Title
IX Coordinator, contacted the mother of a student Jane Doe said had witnessed the playground
incident, sent an email to Jane Doe describing the initial steps of her investigation, and filed a report
with the Department of Human Services. (Id. at PageID.322.) On September 1, 2016, Jane Doe
informed Shoup that Jimmy had enrolled at Tri-Unity Christian School. Shoup’s investigation failed
to confirm Jimmy’s new allegations.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. Material facts are facts
which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable
jury could return judgment for the non-moving party. Id.
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The court must draw all inferences in a light most favorable to the non-moving party, but
may grant summary judgment when “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th
Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.
Ct. 1348, 1356 (1986)).
III. DISCUSSION
A.

Title IX Claim
Title IX provides that “[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
educational program or activity receiving Federal financial assistance. . . .” 20 U.S.C. § 1681.
Courts have recognized that Title IX implies a cause of action against a recipient of federal funds
for discrimination based on sex. See Cannon v. Univ. of Chi., 441 U.S. 677, 689, 99 S. Ct. 1946,
1953 (1979).
The Supreme Court has recognized that “in certain limited circumstances,” student-onstudent sexual harassment may violate Title IX. Davis ex rel. LaSonda D. v. Monroe Cty. Bd. of
Educ., 526 U.S. 629, 643, 119 S. Ct. 1661, 1671 (1999). The Court held that a funding recipient
may be liable when (1) “the sexual harassment was so severe, pervasive, and objectively offensive
that it can be said to deprive the victims of access to the educational opportunities or benefits
provided by the school”; (2) the recipient had actual knowledge of the sexual harassment; and (3)
the recipient was deliberately indifferent to the harassment. Id. at 650, 119 s. Ct. at 1675; see also
Tumminello v. Father Ryan High Sch., Inc., 678 F. App’x 281, 284 (6th Cir. 2017) (citing Patterson
v. Hudson Area Schs., 551 F.3d 438, 444–45 (6th Cir. 2009)). A plaintiff may recover damages only
if “an official who at a minimum has authority to address the alleged discrimination and to institute
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corrective measures on the recipient’s behalf has actual knowledge of discrimination in the
recipient’s programs and fails adequately to respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 290, 118 S. Ct. 1989, 1999 (1998).
The District argues that there are several reasons why summary judgment is proper on
Plaintiffs’ Title IX claim. The Court need not address all of them, as two suffice. First, Plaintiffs’
claim fails because it is undisputed that the District did not have prior actual notice that Jimmy was
being subjected to sexual harassment. “[W]hen they accept federal funds, schools do not agree to
be their students’ insurers against any harassment they may face.” Doe v. Hamilton Cty. Bd. of
Educ., 329 F. Supp. 3d 543, 556 (E.D. Tenn. 2018). Rather, as the Court held in Davis, a plaintiff
is required to show actual knowledge—that is, “known acts of peer sexual harassment”—by an
appropriate school official in order to establish Title IX liability. 526 U.S. at 648, 119 S. Ct. at
1673. This standard “is not satisfied by proof that school officials should have been aware of a
potential for student-on-student harassment.” Peer ex rel. Doe v. Porterfield, No. 1:05-cv-769, 2007
WL 9655728, at *7 (W.D. Mich. Jan. 8, 2007) (citing Baynard v. Malone, 268 F.3d 228, 238 (4th
Cir. 2001)); see also Kollartsch v. Mich. State Univ. Bd. of Trs., 298 F. Supp. 3d 1089, 1101 (W.D.
Mich. 2017) (noting that “courts have rejected use of agency and negligence principles” to impose
Title IX liability on funding recipients).
The District has presented undisputed proof that neither Shoup nor Huberts had any
knowledge—actual or otherwise—that Jimmy was being sexually harassed prior to discovery of the
inappropriate pictures on the iPads. Plaintiffs present no argument or evidence to refute the
District’s proof that it lacked actual knowledge of sexual harassment and, at oral argument,
Plaintiffs’ counsel conceded that no such evidence exists. Plaintiffs’ Title IX claim fails on this
basis alone.
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Second, Plaintiffs fail to demonstrate that the District was deliberately indifferent to known
sexual harassment of Jimmy. The Supreme Court has said that a plaintiff demonstrates deliberate
indifference “only where the recipient’s response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648, 119 S. Ct. at 1674. This
“is not a mere ‘reasonableness’ standard,” id. at 649, 119 S. Ct. at 1674, and it does not require
recipients to “purg[e] their schools of actionable peer harassment.” Id. at 648, 119 S. Ct. at 1673.
Nor is the standard met by “a collection of sloppy, or even reckless, oversights; it means evidence
showing obvious, deliberate indifference to sexual abuse.” Doe v. Claiborne Cty., 103 F.3d 495,
508 (6th Cir. 1996). Whether a recipient should have conducted a better or more thorough
investigation is not the proper focus. See Sanchez v. Alvarado, 101 F.3d 223, 229 (2d Cir. 1996)
(“The alleged actions and inaction by these defendant-supervisors hardly qualify as a model for
administering an efficient and effective anti-harassment policy. Even overlooking the efforts to
discourage Sanchez from pressing the second complaint, their leisurely response to a serious second
complaint could create a trialworthy issue—given her version of the relevant events and assuming
a lack of mitigating explanations—if simple negligence were the applicable standard. But it is
not.”).
Shoup’s response to Hubert’s discovery of the inappropriate pictures on the iPads was
entirely reasonable in light of the known circumstances. Shoup separately interviewed each student
involved, including Jimmy, to find out the details of what occurred. Each student, including Jimmy,
stated that it was Jimmy’s idea to take the picture. No student said that inappropriate touching had
occurred, and no other circumstance indicated that such was the case. Shoup also contacted the
police, the Michigan Department of Human Services, and each involved student’s parents. No
further harassment occurred. On this record, there was no deliberate indifference, and Plaintiffs do
not argue otherwise.
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Plaintiffs do argue that three facts in dispute preclude summary judgment: (1) Shoup’s
investigation was not done pursuant to Title IX law or regulations; (2) Jimmy later revealed the
details of what actually transpired, i.e., he was touched by other students, and in her interview of
Jimmy, Shoup did not ask him if he felt coerced or was touched; and (3) Shoup contacted the police
department and the Department of Human Services only after Jane Doe asked Shoup why she had
not done so. (ECF No. 72 at PageID.920–21.) None of these asserted factual disputes is material
because all undisputed facts show that Shoup’s investigation was reasonable and that the District
was not deliberately indifferent. Moreover, none of these asserted facts demonstrates that the
District had actual knowledge of the harassment.
Plaintiffs’ only argument pertaining to their Title IX claim—which their counsel stressed at
oral argument—is that because Shoup deleted the pictures from the iPad, such conduct amounts to
spoliation, which supports an adverse inference that the photos evidenced a sexual assault on Jimmy
and that the District violated Title IX when it took no measures to discipline the perpetrators. (ECF
No. 922–23.) Even if the pictures showed inappropriate touching, as Plaintiffs intimate, Plaintiffs
fail to explain how such evidence could sustain their claim. The pictures would not establish actual
knowledge, and they would not undermine the conclusion that the District was not deliberately
indifferent. Shoup’s investigation did not cause the alleged harassment, and it is undisputed that
there was no subsequent sexual harassment when Jimmy returned for the 2015–16 school year.
Thus, Plaintiffs cannot argue that any shortcoming in the investigation led to, or failed to prevent,
further harassment. Finally, the District had a legitimate reason to delete the pictures—protecting
the privacy of the students, including Jimmy, who were involved. In short, there is no evidence of
spoliation or intentional destruction of evidence because the District had no reason to believe that
the pictures would be relevant to future litigation (which was not filed until almost three years after
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Huberts first discovered the pictures), and Plaintiffs fail to show that Shoup acted with a culpable
state of mind in having the pictures removed from the iPads. See Beaven v. United States Dep’t of
Justice, 622 F.3d 540, 553 (6th Cir. 2010) (reciting the elements that must be shown to warrant an
adverse inference based on the destruction of evidence).
B.

Section 1983 Municipal Liability Claim
In Count II, Plaintiffs allege claims against the now-dismissed individual Defendants for

violations of Jimmy’s rights to personal security and bodily integrity and equal protection of the
laws. Count III alleges a claim for Monell, or municipal liability, against the District based on the
alleged violations in Count II. The only claim Plaintiffs address in their response is an equal
protection claim. (ECF No. 72 at PageID.923.) Accordingly, Plaintiffs have abandoned the personal
security and bodily integrity claim. See Swann v. Time Warner Entm’t, LP, 126 F. Supp. 3d 973,
982 (S.D. Ohio 2015) (concluding that the plaintiffs abandoned their wrongful termination claims
by failing to address them in their brief).
“To prevail in a § 1983 suit against a municipality, a plaintiff must show that the alleged
federal right violation occurred because of a municipal policy or custom.” Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694, 98 S. Ct. 2018, 2037–38 (1978)). In the instant case, Plaintiffs rely on a failure to train theory
as the basis for a policy or custom. Id. However, failure to train cannot be alleged in a vacuum.
“Where, as here, a municipality’s liability is alleged on the basis of the unconstitutional actions of
its employees, it is necessary to show that the employees inflicted a constitutional harm.” Ewolski
v. City of Brunswick, 287 F.3d 492, 516 (6th Cir. 2002) (citing City of Los Angeles v. Heller, 475
U.S. 796, 799, 106 s. Ct. 1571, 1573 (1986)); see also Blackmore v. Kalamazoo Cty., 390 F.3d 890,
900 (6th Cir. 2004) (“A municipality . . . cannot be liable under § 1983 absent an underlying
constitutional violation by its officers.”).
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The Sixth Circuit recognizes two methods of establishing an equal protection violation in
the context of a school’s response to student-on-student harassment. Stiles ex rel. D.S. v. Grainger
Cty., 819 F.3d 834, 851 (6th Cir. 2016). The first type of claim involves “disparate treatment of one
class of students who complain about bullying as compared to other classes of students.” Id. at
851–52.

The second type of claim alleges “deliberate indifference to discriminatory peer

harassment.” Id. at 852.
Plaintiffs argue that Jimmy’s equal protection rights were violated because: (1) the District
was deliberately indifferent to the sexual harassment against him; and (2) “the school district treated
Jimmy differently than it would have had he been a female victim.” (ECF No. 72 at PageID.923.)
As to the gender-based claim, Plaintiffs offer no evidence—only argument and speculation—to
show that the District treated Jimmy differently than it would have treated a female student if the
photos had depicted a vagina instead of a penis. However, speculation and arguments of counsel
are not evidence. See Pearce v. Faurecia Exhaust Sys., Inc., 529 F. App’x 454, 458 (6th Cir. 2013)
(“Conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and, are not
enough to defeat a well-supported motion for summary judgment.”). As for deliberate indifference,
for the reasons discussed above, Plaintiffs fail to present any evidence showing that the District was
deliberately indifferent to acts of harassment. Accordingly, the municipal liability claim fails.
C.

Plaintiffs’ Request for Additional Discovery
Plaintiffs concede that they have no evidence to support their § 1983 claim, but request

“further time to produce such evidence pursuant to Fed. R. Civ. P. 56(d).” (Id. at PageID.926.) Rule
56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may” proceed accordingly.
Plaintiffs fail to comply with Rule 56(d) by filing an affidavit of counsel. Such failure is fatal to

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their request. See Gingiloski v. Commercial Recovery Servs., No. 2:16-cv-13273, 2017 WL
2334946, at *4 (E.D. Mich. May 30, 2017) (“If a Rule 56(d) request can be denied when supporting
affidavits are too vague, it is certainly appropriate to deny Plaintiff’s request, because she failed to
attach an affidavit or declaration altogether.”). Moreover, Plaintiffs have had ample time to conduct
discovery, and discovery has confirmed that there was no similar event in the District involving
males or females. Therefore, Plaintiffs’ request for additional discovery will be denied.
IV. CONCLUSION
For the foregoing reasons, the Court will grant the District’s motion for summary judgment
and dismiss Plaintiffs’ claims with prejudice.
An Order consistent with this Opinion will enter.

Dated: July 12, 2019

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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