Higgins v. Saavedra et al

Filing 62

ORDER by Magistrate Judge William P. Lynch granting 43 Motion to Dismiss Section 1985 Conspiracy Claims for Failure to State a Claim. (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

RACHEL HIGGINS, as Guardian
ad Litem for B.P., a minor child,
Plaintiff,
v.

No. 17-CV-234 WPL/LF

BRITTNY SAAVEDRA, in her personal
capacity acting under color of state law;
DEBORAH GARTMAN, in her personal
capacity acting under color of state law;
MARK A. GARCIA, in his personal
capacity acting under color of state law;
SHONN SCHROER, in his personal
capacity acting under color of state law;
CYNTHIA SOO HOO, in her personal
capacity acting under color of state law;
and ALBUQUERQUE PUBLIC
SCHOOLS DISTRICT,
Defendants.
MEMORANDUM OPINION AND ORDER
In the First Amended Complaint for Civil Rights Violations (Doc. 40) (Complaint),
Plaintiff Rachel Higgins (Plaintiff) asserts claims as Guardian ad Litem on behalf of B.P., a
minor child who was a student at West Mesa High School (WMHS) in the Albuquerque Public
Schools District (APS). Compl. ¶¶ 1, 4, 13. Defendants are APS, Cynthia Soo Hoo, the
Executive Director of Compliance for the Special Education Department at APS (ED Soo Hoo),
Brittny Saavedra, the Head Varsity Cheerleading Coach at WMHS (Coach Saavedra), Deborah
Gartman, the Assistant Principal at WMHS (Asst. Principal Gartman), Mark A. Garcia, the
Principal at WMHS (Principal Garcia), and Shonn Schroer, the Athletic Director at WMHS
(Athletic Director Schroer) (together, Defendants). Compl. ¶¶ 3–9.

Plaintiff alleges that B.P., who was a member of the WMHS varsity cheerleading squad,
was sexually harassed and intimidated by other members of the team while on a schoolsponsored trip and at WMHS. Compl. ¶¶ 14, 43, 126. Plaintiff asserts that Defendants violated
B.P.’s rights when they failed to respond reasonably and instead contributed to the harassment
and intimidation, retaliated against B.P., and attempted to extort a release from liability by
withholding B.P.’s transfer to another school. Compl. ¶¶ 128–131, 146–147, 152. Plaintiff brings
claims under Title IX as to APS and 42 U.S.C. §§ 1983 and 1985 as to all Defendants.
Defendants have moved to dismiss Plaintiff’s § 1985 claim on the pleadings. Finding that
Plaintiff has failed to allege all elements required under § 1985, I conclude that dismissal of the §
1985 claim is required and grant the Motion.
I.

BACKGROUND

The following facts are drawn from the Complaint. In July of 2015, B.P. traveled to
Phoenix, Arizona with the other members of the WMHS varsity cheerleading squad to
participate in a three-day cheerleading camp as arranged by Coach Saavedra. Compl. ¶¶ 14, 16.
Coach Saavedra was one of three chaperones traveling with the team; the other two were Chloe
Saavedra and Salome Chavez. Id. Although chaperones for APS school-sponsored events were
required to be 21 years of age or older, Ms. Chavez was just 17 years old at the time and had
graduated from WMHS only two months before. Compl. ¶¶ 15–18. B.P.’s parents authorized
B.P. to attend the camp on the condition that B.P., then 15 years old, would stay in the same
hotel room as Coach Saavedra. Compl. ¶ 19. Coach Saavedra initially agreed to this
arrangement, but after Coach Saavedra’s boyfriend arrived at the hotel she moved B.P. so that
Coach Saavedra and her boyfriend could be alone in the room. Compl. ¶¶ 19–21. Coach

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Saavedra placed B.P. in a hotel room with Ms. Chavez and two other members of the
cheerleading squad. Compl. ¶ 21.
On the evening of July 25, 2015, B.P. was showering in the hotel room when the two
teammates who shared her room, and possibly other members of the cheerleading squad as well,
used Ms. Chavez’s cell phone to photograph and videotape B.P. in the shower. Compl. ¶¶ 21–23.
At least two cheerleaders put the phone over the shower to photograph B.P. and then pulled the
curtain away from B.P. to take video while she was naked and scared. Compl. ¶ 22. The video
was posted on the social media app “Snapchat” and shown to approximately seven of B.P.’s
other teammates, who began to tease and harass B.P. by making derogatory comments about her
body. Compl. ¶¶ 24–25. These included explicit references of a sexual nature, and derided B.P.
for not conforming to her teammates’ stereotypes of attractive femininity. Compl. ¶¶ 24, 47.
That same night, B.P. went to Coach Saavedra’s hotel room and reported the incident.
Compl. ¶ 29. Coach Saavedra told B.P. to apologize to her teammates for overreacting to a joke.
Compl. ¶ 30. Coach Saavedra stated that none of B.P.’s teammates would be disciplined because
Coach Saavedra did not want to “ruin the trip for everybody,” and she threatened to punish B.P.
by making B.P. run during practice if B.P. ruined the trip for the other WMHS cheerleaders.
Compl. ¶¶ 31–32. Coach Saavedra told B.P. in front of her teammates that the other cheerleaders
had only been playing a joke on B.P., that this was just what girls did during sleepovers, and that
B.P. was overreacting. Compl. ¶ 35.
B.P. attempted to speak to hotel security, but Coach Saavedra and Assistant Coach Chloe
Saavedra saw her, became upset, and prevented B.P. from reporting what had happened and
security from assisting B.P. further. Compl. ¶ 36. B.P. notified her parents of the incident, but
when Coach Saavedra spoke to B.P.’s mother the next day she requested that B.P.’s mother not

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contact the Phoenix Police because Coach Saavedra did not want B.P.’s teammates to get in
trouble for a “prank.” Compl. ¶¶ 34, 37. In speaking to B.P. the night of the incident and to
B.P.’s mother the next day, Coach Saavedra characterized the events as “no big deal” because
one of the cheerleaders involved had previously taken photos and videos of another teammate
using the toilet and that person had not complained. Compl. ¶¶ 33–34.
Contrary to Coach Saavedra’s request, B.P.’s mother did contact the Phoenix Police
Department. Compl. ¶ 38. But Coach Saavedra refused to cooperate with the police
investigation. Compl. ¶ 39. She prevented witnesses from speaking to the police, told the police
there was no video, and failed to return phone calls from the Phoenix Police Department
detective. Id. The day after the incident, B.P. was excluded from a photo of the WMHS varsity
cheerleading squad that was posted on social media. Compl. ¶ 40. Coach Saavedra was
overheard that day making negative comments about B.P. to the other coaches and cheerleaders.
Compl. ¶ 41. She called B.P. “a baby” and a bad teammate for reporting the incident to hotel
security and police, and she said that incidents like that were part of competing and B.P. should
“get over it and stop complaining” because the video had been deleted. Id. On the way back to
Albuquerque, Coach Saavedra and Chloe Saavedra sat near B.P. on the plane and called her “a
baby” who was “overreacting” and needed to “get over it.” Compl. ¶ 42.
But there had been two copies made of the video, and the harassment and intimidation
continued after B.P. returned to WMHS. Compl. ¶¶ 43–44, 47, 54, 69. B.P.’s teammates laughed
at her and told other WMHS students about the incident, who then also teased her. Compl. ¶ 61.
Coach Saavedra demoted B.P. from her position as “flier” on the varsity cheerleading squad,
blamed B.P. in front of the entire team for a two-week suspension of practice, and excluded B.P.
from team activities. Compl. ¶ 44. Despite her love of cheerleading and her previous intent to

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remain a member of the team all four years of high school, B.P. quit the cheerleading squad
because of the taunting and ostracization. Compl. ¶¶ 65–66. However, it still did not stop.
Compl. ¶ 69. One former teammate who had been involved in the July 25 incident and that
teammate’s mother followed B.P. around campus one day. Id. Even B.P.’s younger brother and
one of B.P.’s friends, who were also WMHS students, experienced harassment and intimidation.
Compl. ¶¶ 71–75. Other members of the cheerleading squad, including B.P.’s friend, also quit
the team due to the ongoing harassment and the lack of response by WMHS administrators and
staff. Compl. ¶ 67.
B.P.’s parents requested the WMHS administration to take disciplinary action against the
teammates involved, explained that they had entrusted the cheerleading coaches with the care of
their daughter, and expressed concern that the incident was being trivialized and that B.P. was
afraid and was being shunned for having reported the incident. Compl. ¶¶ 44–46. Members of
the WMHS administration interviewed the WMHS cheerleaders on August 4 and 5, 2015, and
were told that one teammate had taken photos of B.P. nude in the shower and another had taken
video, which was stored to two different files and shown to the entire cheerleading squad, at least
some of whom then made derogatory comments of a sexual nature about B.P.’s body. Compl. ¶
47.
Defendants were authorized to take disciplinary action regarding off-campus misconduct
during school activities, and Principal Garcia had the discretion to remove students from extracurricular activities if their conduct did not meet standards higher than those expected during
classroom hours. Compl. ¶¶ 62–63. However, at an August 14, 2015, meeting attended by B.P.
and her parents, Asst. Principal Gartman, Athletic Director Schroer, and APS Officer Deb
Romero, B.P. was told that only one of her teammates would be disciplined, and that the

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punishment would not include removal from the WMHS varsity cheerleading squad. Compl. ¶
45. Toby Herrera, the Director of the Student Service Center, suggested that all students involved
be removed from the team for the year, but this suggestion was rejected. Compl. ¶ 59. No
consequences were imposed on the other participating cheerleaders despite WMHS policies
acknowledging the necessity of discipline in fulfilling the educational function of the school.
Compl. ¶¶ 48–50, 60. The student who had taken the nude photographs of B.P. was not
disciplined, despite the fact that she had previously taken photographs and video of another
WMHS cheerleader who was on the toilet, Coach Saavedra was aware of the previous incident,
and APS was or should have been aware of both the incident and Coach Saavedra’s failure to
discipline the student at that time. Compl. ¶¶ 49, 51–53. APS did not take any disciplinary action
against Coach Saavedra either. Compl. ¶ 53.
Defendants were aware that the harassment continued after this meeting, yet they
continued to minimize the problem and instead retaliated against B.P. Compl. ¶¶ 54–58, 61, 68–
70, 74, 77. Despite further requests from B.P.’s parents and concerns voiced by other parents,
Defendants did not reasonably intervene even though they had acknowledged that B.P. was
being harassed, intimidated, and bullied. Compl. ¶¶ 54–58, 61, 66, 68–70, 74. Defendants
repeatedly requested that B.P. engage in mediation with her tormentors, even though APS policy
states that mediation is not appropriate if bullying is involved. Compl. ¶¶ 58, 69. Athletic
Director Schroer told parents that this was to be expected in cheerleading and refused to let B.P.
talk about the July 25 incident with her former WMHS advisor. Compl. ¶¶ 68, 77. Principal
Garcia warned one of B.P.’s male friends that B.P. was “drama.” Compl. ¶ 77.
As a result of the continuous harassment, B.P., her younger brother, and her friend all
attempted to transfer out of WMHS. Compl. ¶¶ 75, 83, 85. B.P.’s mother submitted a transfer

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request for both B.P. and her brother on October 7, 2015, citing safety concerns. Compl. ¶ 85.
APS delayed the transfer with no reasonable basis for the delay and despite having actual
knowledge that WMHS was an unsafe environment. Compl. ¶¶ 86–87. In December 2015,
WMHS administrators informed the principal of the proposed transfer school that “he would
have nothing but drama” if he accepted B.P. into his school. Compl. ¶ 77. On January 4–5, 2016,
Principal Garcia discussed B.P.’s requested transfer with WMHS official Rae Lynn Dooley.
Compl. ¶ 88. On January 7, 2016, B.P.’s mother spoke to the principal of the proposed transfer
school and he signed transfer documents agreeing that B.P. could start classes there immediately.
Compl. ¶ 89. B.P.’s mother then went to WMHS to withdraw B.P. and her younger brother.
Compl. ¶ 90. But later that day, B.P.’s mother received voicemail and email messages from ED
Soo Hoo stating that B.P.’s transfer could not be completed until B.P. and her parents released all
APS entities, agents, and employees from liability on any civil claims by B.P. or her parents.
Compl. ¶¶ 91, 98, 107.
APS and its agents, employees, and representatives knew that B.P. and her parents were
represented by counsel, planned to file civil tort claims against APS, and wished to have all
communication with WMHS or APS officials handled through their attorney. Compl. ¶¶ 100–
103. Nevertheless, ED Soo Hoo contacted B.P.’s mother directly and attempted to obtain a
release from liability in exchange for B.P.’s transfer by saying that there had been an
administrative error regarding the approval of B.P.’s transfer and that the process for approving a
transfer was through the settlement agreement, which was attached to the email. Compl. ¶¶ 94,
99, 104, 107. ED Soo Hoo discussed this plan over email with Lucinda Sanchez, the Interim
Associate Superintendent with the Special Education Department at APS, stating that “we have a
settlement agreement completed . . . Should they agree . . . she will be moved to [the transfer

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school].” Compl. ¶ 106. ED Soo Hoo stated to B.P.’s parents that APS could “make B.P.’s
transfer happen” if they dropped B.P.’s civil claims. Compl. ¶ 105. However, official APS policy
does not require a release of claims before a student is allowed to transfer, and B.P.’s brother and
B.P.’s friend were both allowed to transfer out of WMHS without being asked to waive their
rights to bring legal claims. Compl. ¶¶ 93, 95, 97.
On January 8, 2016, the day after she received the messages from ED Soo Hoo, B.P.’s
mother went to the transfer school to begin the enrollment process for B.P. and B.P.’s younger
brother. Compl. ¶ 108. But ED Soo Hoo, on behalf of APS, had instructed the principal at the
transfer school not to accept B.P. unless her parents waived their legal claims. Compl. ¶ 113. The
principal informed B.P.’s mother that APS had told him to reverse B.P.’s transfer pending further
instruction from APS administration, although he had previously approved the transfer and there
was no impediment at the transfer school to B.P.’s enrollment there. Compl. ¶¶ 89, 109–110.
B.P.’s younger brother was allowed to transfer immediately, but B.P.’s transfer was refused
despite both requests having been submitted on the same day and both having cited safety
reasons. Compl. ¶ 114–115. It was not until after B.P.’s attorney filed a temporary restraining
order on B.P.’s behalf that APS changed its course of action. Compl. ¶¶ 116–117.
On January 10, 2016, ED Soo Hoo emailed Interim Associate Superintendent Lucinda
Sanchez and the principal at the transfer school letting them know that B.P. would start there the
next day. Compl. ¶ 118. Ms. Sanchez responded by inquiring whether B.P.’s parents had signed
the release, and ED Soo Hoo replied the next day, saying that they had not signed, but because of
the temporary restraining order, “[w]e decided to go ahead and approve it.” Compl. ¶ 120. APS
finally allowed B.P. to transfer schools on January 11, 2016, over three months after her initial
request had been submitted. Compl. ¶¶ 85, 117.

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Based on these events, Plaintiff filed claims on B.P.’s behalf alleging that APS
discriminated against B.P. on the basis of her sex in violation of Title IX, and that all Defendants
violated B.P.’s rights under the First Amendment and the Equal Protection Clause and conspired
to interfere with her civil rights contrary to 42 U.S.C. § 1985. In the Motion to Dismiss,
Defendants argue that Plaintiff has failed to state a claim under § 1985 and that Defendants are
entitled to qualified immunity.
II.

DISCUSSION

“A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to
dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,
1160 (10th Cir. 2000). The Court will “accept the well-pleaded allegations of the complaint as
true and construe them in the light most favorable to the plaintiff.” Ramirez v. Dep’t of Corr.,
Colo., 222 F.3d 1238, 1240 (10th Cir. 2000). Dismissal on the pleadings is generally appropriate
only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of [the]
claim which would [warrant] relief.” Ramirez, 222 F.3d at 1240 (quoting Conley v. Gibson, 355
U.S. 41, 45–46 (1957)). But “[t]o overcome a defendant’s claim of qualified immunity in the
context of a Rule 12(c) motion, a plaintiff’s pleadings must establish both that the defendant’s
actions violated a federal constitutional or statutory right and that the right violated was clearly
established at the time of the defendant’s actions.” Id.
A.

Plaintiff’s Section 1985 Claim

Section 1985 provides a cause of action based on allegations of conspiracy to 1) prevent a
federal officer from performing official duties; 2) obstruct justice or intimidate a party, witness,
or juror; or 3) deprive a person of equal protection and privilege under the law. Plaintiff alleges
that Defendants and other WMHS and APS administrators, specifically including Lucinda

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Sanchez, acted under color of law to interfere with B.P.’s civil rights by conspiring to deprive
B.P. of a free and appropriate public education in a safe environment by refusing her transfer
unless her parents waived B.P.’s right to access the civil justice system. Plaintiff asserts that
Defendants and other administrators impeded B.P.’s civil rights claims by their actions, and that
they did so with the intent to deny B.P. equal protection of the law, in retaliation against B.P. for
her exercise of her First Amendment right to administratively report the harassment she faced
and to petition the courts for redress. See Compl. ¶¶ 174–185. Defendants argue that even
accepting the truth of Plaintiff’s allegations, Plaintiff fails to state a claim under § 1985 because
the acts alleged are not of the type that § 1985 was intended to prohibit. Mot. at 7.
Although Plaintiff does not specify the subsection of § 1985 referenced in the Complaint,
the Court agrees with Defendants that § 1985(1) is inapplicable to B.P.’s claim because the plain
language of that subsection refers only to conspiracy against federal officers. See Mot. at 9. The
remaining two statutory provisions contain similar language potentially relevant to Plaintiff’s
claim. Section 1985(2), in relevant part, provides a cause of action “if two or more persons
conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the
due course of justice in any State or Territory, with intent to deny to any citizen the equal
protection of the laws.” And § 1985(3) applies similarly when “two or more persons in any State
or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal privileges and immunities under
the laws[.]” Defendants contend that Plaintiff has not stated a claim under either § 1985(2) or (3)
because both of those provisions apply only when the conspiracy is motivated by racial or other
class-based animus, and Plaintiff has not alleged that Defendants conspired against B.P. because
of her membership in any protected class. Mot. at 20.

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Section 1985 is a Reconstruction-era civil rights statute for “the prevention of
deprivations which shall attack the equality of rights of American citizens.” Griffin v.
Breckenridge, 403 U.S. 88, 100 (1971). But so that its broad language does not expand into a
“general federal tort law[,]” the Supreme Court has required, “as an element of the cause of
action, the kind of invidiously discriminatory motivation stressed by the sponsors[.]” Id. at 102.
“The language requiring intent to deprive of equal protection, or equal privileges and
immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action.” Id. The Supreme Court in Griffin
expressly declined to decide whether § 1985(3) could reach claims of conspiracy motivated by a
discriminatory intent other than racial bias. Id. at 102 n.9. It has since noted that this is a close
question, because “[t]he predominate purpose of § 1985(3) was to combat the prevalent animus
against Negroes and their supporters.” United Bhd. of Carpenters & Joiners of Am., Local 610,
AFL-CIO v. Scott, 463 U.S. 825, 836 (1983). While the Supreme Court has not repudiated the
possibility it left open in Griffin, it has continued to narrowly construe § 1985(3). See id. at 837
(economic or commercial bias is not class-based animus for the purposes of § 1985(3)); Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 269 (1993) (women seeking abortions are not
a class under § 1985(3)).
These limitations apply equally to claims brought under the equal protection provision of
§ 1985(2). Smith v. Yellow Freight Sys., Inc., 536 F.2d 1320, 1323 (10th Cir.1976). “[B]oth
causes of action require a showing of ‘some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action.’” Jones v. Norton, 809 F.3d 564, 578
(10th Cir. 2015) (quoting Griffin, 403 U.S. at 102). “The focus of the . . . animus inquiry is the
government actor’s intent, motive, or purpose.” Id. (internal quotation marks omitted). “To avoid

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summary judgment, Plaintiff[] must point to specific, nonconclusory evidence that the
Defendants’' actions were improperly motivated.” Id. (internal quotation marks omitted). “In the
absence of allegations of class based or racial discriminatory animus, the complaint fails to state
a claim under § 1985.” Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir. 1994) (internal brackets and
quotation marks omitted).
Plaintiff alleges that the § 1985 conspiracy claim “stems from . . . targeted retaliation and
discrimination against B.P. for her attempt to enforce her First Amendment right to report sexual
harassment[.]” Resp. at 1. Defendants’ alleged motivation was a desire to intimidate B.P. into
waiving her legal claims. Resp. at 3. But Plaintiff does not make any allegations that this desire
was founded in racial or other class-based discriminatory animus. Plaintiff quotes Lessman v.
McCormick, 591 F.2d 605, 608 (10th Cir. 1979), for the proposition that “cases which have
recognized under § 1985, classes which are not racially based, have stayed close to the areas
protected by the First Amendment.” Resp. at 11. Plaintiff appears to contend that the § 1985
claim is actionable because the rights of which Defendants allegedly conspired to deprive B.P.
were grounded in the First Amendment. This argument is misplaced. Regardless of the origins of
the right deprived, the conspirators must have been motivated by class-based animus. See Scott,
463 U.S. at 833–34 (§ 1985 claim based on deprivation of First Amendment right to association
requires “some racial, or perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators’ action.”).
While Plaintiff acknowledges the requirement for class-based animus under § 1985(2)
and (3), she contends that this element is adequately alleged because Defendants conspired
against B.P. based on her attempted exercise of her First Amendment rights, thereby denying her

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equal protection as a class of one. See Resp. at 15–19. But for the purposes of § 1985, the class
cannot be defined only by Defendants’ alleged interference.
Whatever may be the precise meaning of a “class” for purposes of Griffin’s
speculative extension of § 1985(3) beyond race, the term unquestionably connotes
something more than a group of individuals who share a desire to engage in
conduct that the § 1985(3) defendant disfavors. Otherwise, innumerable tort
plaintiffs would be able to assert causes of action under § 1985(3) by simply
defining the aggrieved class as those seeking to engage in the activity the
defendant has interfered with. This definitional ploy would convert the statute into
the “general federal tort law” it was the very purpose of the animus requirement to
avoid. As Justice BLACKMUN has cogently put it, the class “cannot be defined
simply as the group of victims of the tortious action.”
Bray, 506 U.S. at 269 (internal citations omitted); see also Royal Oak Entm’t, LLC v. City of
Royal Oak, Mich., 205 F. App’x 389, 399 (6th Cir. 2006) (rejecting the premise that a “class of
one” equal protection theory can support a claim under § 1985); C & H Co. v. Richardson, 78 F.
App’x 894, 901–02 (4th Cir. 2003) (same); Burns v. State Police Ass’n of Mass., 230 F.3d 8, 12
n.4 (1st Cir. 2000) (suggesting that § 1985 does not extend to class-of-one claims). I therefore
conclude that Plaintiff has failed to allege any class-based discriminatory animus as the
motivation for Defendants’ actions, so has failed to state a claim under § 1985. Accordingly, it is
unnecessary for me to consider Defendants’ claim of qualified immunity.
IT IS THEREFORE ORDERED that Defendants’ motion to dismiss Plaintiff’s Section
1985 conspiracy claims for failure to state a claim (Doc. 43) is GRANTED and those claims are
dismissed.

WILLIAM P. LYNCH
UNITED STATES MAGISTRATE JUDGE

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

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