Johnson et al v. Independent School District No 3 of Oklahoma County Oklahoma et al

Filing 24

ORDER granting in part and denying in part 14 the Motion to Dismiss by the Defendants Independent School District No. 3 of Oklahoma County, Oklahoma; the Board of Education of the School of Luther; Sherri Anderson, Matthew Mohr, Ray Stanfield, Aaro n Bachhofer, Patrice Christy, and Donita Mackey, All in Their Official Capacities as Luther School Board Members, and granting 15 the Motion to Dismiss by the Defendants Sherri Anderson, Matthew Mohr, Ray Stanfield, Aaron Bachhofer, Patrice Christy and Donita Mackey in Their Individual Capacities (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 4/10/2018. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANGELA JOHNSON, individually, and as )
Mother and Next Friend of B.F., a Minor, )
)
Plaintiffs,
)
)
vs.
)
)
INDEPENDENT SCHOOL DISTRICT
)
NO. 3 OF OKLAHOMA COUNTY,
)
OKLAHOMA a/k/a LUTHER PUBLIC
)
SCHOOLS, a Political Subdivision of the )
State of Oklahoma, et al.,
)
)
Defendants.
)

Case No. CIV-17-1058-M

ORDER
Before the Court are the Motion to Dismiss by the Defendants Independent School District
No. 3 of Oklahoma County, Oklahoma; the Board of Education of the School of Luther; Sherri
Anderson, Matthew Mohr, Ray Stanfield, Aaron Bachhofer, Patrice Christy, and Donita Mackey,
All in Their Official Capacities as Luther School Board Members and the Motion to Dismiss by
the Defendants Sherri Anderson, Matthew Mohr, Ray Stanfield, Aaron Bachhofer, Patrice Christy
and Donita Mackey in Their Individual Capacities. Plaintiffs have filed their combined response
to defendants’ motions to dismiss, and defendants have filed their joint reply.
I.

Introduction1
Beginning in the latter part of 2014, B.F. began texting with Kyle Whitmus (“Whitmus”),

the band director employed with defendant Independent School District No. 3 of Oklahoma
County, Oklahoma a/k/a Luther Public Schools (“LPS”), about issues she was having at home.

The facts set forth in this Introduction are based upon the facts set forth in plaintiffs’ Original
Complaint [docket no. 1].
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B.F. was 12 years old at the time and a 6th grader at Luther Middle School. B.F. and Whitmus’
texts grew sexual in nature and continued for months. The text messages between B.F. and
Whitmus graduated into several face-to-face meetings after band class on school property and
during school hours. After band class was dismissed, B.F. would wait behind and Whitmus would
kiss B.F. and touch her private parts over her clothing. B.F. would then hurry to the bus to be
transferred back to the middle school.
Sometime in January 2015, Whitmus made a plan to have B.F. stay after class and not take
the bus back to the middle school. Once the bus left, B.F. and Whitmus were alone in the building,
and they engaged in sexual intercourse in the band room.2 Following the sexual intercourse, a
Luther Public School counselor heard rumors of the relationship between B.F. and Whitmus. The
counselor brought the rumors to the attention of B.F.’s parents. B.F.’s parents contacted the
authorities. On February 16, 2016, Whitmus was arrested for having a sexual relationship with a
child under the age of 14. Whitmus was sentenced in Oklahoma County on July 24, 2017.
Whitmus’ wife testified during the sentencing hearing that in the fall of 2011, she told the
superintendent of LPS that Whitmus was having an inappropriate relationship with a young female
student. No action was taken by LPS or the administrators. Additionally, in 2012, during a school
sponsored band trip, Whitmus was caught in a hotel room in Dallas, Texas alone with a young,
underage student. Although Whitmus was suspended for two days, no investigation was initiated
nor was the conduct reported to the Department of Human Services. Following the hotel incident,
Whitmus was caught, again, with the same young, underage student alone at lunch. Again,

The band room was in a separate building located 8 blocks south of the Luther Middle School.
LPS had an official school policy/custom wherein students were bused to the band room via school
bus and bused back to the middle school. The band director (Whitmus), alone, was responsible to
account for the students when the students returned to the bus.
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Whitmus was suspended for two days, but no investigation was initiated nor was the conduct
reported to the Department of Human Services. On at least one other occasion prior to the incident
at bar, Whitmus was observed acting inappropriately with a young, underage female student while
on a school sponsored band trip. This conduct was witnessed by several parents and at least one
Luther School Board member. Again, no investigation was initiated and no action was taken.
On October 4, 2017, plaintiffs filed the instant action, alleging the following causes of
action: (1) negligence against LPS, (2) intentional infliction of emotional distress, (3) assault and
battery, (4) negligence per se, (5) vicarious liability, (6) negligence against the Board of Education
of the School of Luther (“Luther School Board”), (7) liability under § 1983, and (8) liability under
20 U.S.C. § 1681 (“Title IX”). Defendants LPS, the Luther School Board, and the Luther School
Board Members now move this Court to dismiss all causes of action against them.
II.

Discussion
A.

Luther School Board and Luther School Board Members

In their response, plaintiffs concede to the dismissal of the Luther School Board Members
in both their official and individual capacities and to the dismissal of the Luther School Board.
Accordingly, the Court finds that defendant Luther School Board and defendants Sherri Anderson,
Matthew Mohr, Ray Stanfield, Aaron Bachhofer, Patrice Christy, and Donita Mackey, in both their
official and individual capacities, should be dismissed.
B.

Causes of Action Against LPS
1.

Negligence, negligence per se, and vicarious liability

LPS asserts that plaintiffs’ causes of action for negligence, negligence per se, and vicarious
liability should be dismissed for failure to comply with the mandatory time provisions in the
Oklahoma Governmental Tort Claims Act. Specifically, LPS asserts that plaintiffs’ January 9,

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2017 notice of tort claim to LPS is untimely because it was filed more than one year from when
plaintiffs’ claim accrued against LPS. LPS contends that plaintiffs had notice of a possible
inappropriate relationship between B.F. and Whitmus as early as April 5, 2015 and had until April
5, 2016 to file a notice of tort claim with LPS.
Plaintiffs assert that their tort claim notice was timely given or, alternatively, that a question
of fact remains as to the appropriate accrual date. Specifically, plaintiffs assert that the injury
underlying their negligence claims against LPS is not the underlying inappropriate relationship
between Whitmus and B.F. but the multiple failures on the part of LPS to protect and prevent this
type of abuse and that the date plaintiffs discovered LPS’ conduct underlying their claims for
negligence, negligence per se, and vicarious liability is the appropriate date to use to determine the
timeliness of the notice of tort claim. Plaintiffs further contend that the facts supporting their
negligence claims did not become known to them until the preliminary hearing in Whitmus’
criminal trial, which occurred on February 25, 2016. Finally, plaintiffs contend that LPS failed to
disclose information that could have provided them enough information to properly make a claim
sooner.
“The Oklahoma Governmental Tort Claims Act (‘GTCA’), provides the exclusive remedy
for an injured plaintiff to recover against a governmental entity in tort.” Watkins v. Cent. State
Griffin Mem’l Hosp., 377 P.3d 124, 130 (Okla. 2016). The time frame for bringing a tort claim
under the GTCA is narrowly structured. See id. “[C]laims against the state or a political
subdivision are to be presented within one (1) year of the date the loss occurs” and said claims
“shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.”
Okla. Stat. tit. 51, § 156(B). The loss in the instant action is B.F.’s injuries resulting from the
inappropriate relationship between B.F. and Whitmus. Therefore, plaintiffs had until April 5, 2016

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to file a notice of tort claim with LPS. Plaintiffs’ January 9, 2017 notice of tort claim, thus, was
untimely and plaintiffs’ negligence causes of action should be dismissed unless LPS is estopped
from raising the defense of the time limitation bar under the GTCA.
The Oklahoma Supreme Court has not applied the discovery rule to the GTCA’s time limits
set forth in its notice provisions. The Oklahoma Supreme Court has, however, identified specific
types of allegations that will estop a defendant from raising the defense of the time limitation bar
under the GTCA. “Included in this list are allegations of false, fraudulent or misleading conduct
or some affirmative act of concealment to exclude suspicion or preclude inquiry, which induces
one to refrain from timely bringing an action.” Watkins, 377 P.3d at 131 (internal quotations
omitted).3 The Oklahoma Supreme Court has held that for this doctrine to apply, there must be
evidence of a defendant’s false, fraudulent, or misleading conduct, or an affirmative act of
concealment to induce a plaintiff from timely bringing an action. See Watkins, 377 P.3d at 132.
Having carefully reviewed plaintiffs’ Original Complaint, the Court finds that plaintiffs
have not set forth any allegations of false, fraudulent or misleading conduct or any affirmative act
of concealment to exclude suspicion or preclude inquiry on the part of LPS. Further, the Court
finds that plaintiffs’ allegations regarding LPS’ “failure to disclose information” set forth in their
response to defendants’ motions to dismiss would not constitute false, fraudulent, or misleading
conduct or an affirmative act of concealment meant to induce plaintiffs from timely bringing an
action. Specifically, the Court finds that plaintiffs’ allegations do not set forth any affirmative

The following types of allegations have been identified to estop the defense of the time limitation
bar under the GTCA: “some assurance of settlement negotiations reasonably calculated to lull the
plaintiff into a sense of security and delay action beyond the statutory period, or (b) an express and
repeated admission of liability in conjunction with promises of payment, settlement or
performance, or (c) any false, fraudulent or misleading conduct or some affirmative act of
concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely
bringing an action.” Watkins, 377 P.3d 124, 131, n.18 (internal quotations and citation omitted).
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conduct on the part of LPS and are only allegations that LPS omitted to provide certain
information.
Accordingly, the Court finds that plaintiffs’ negligence, negligence per se, and vicarious
liability causes of action against LPS should be dismissed.
2.

Intentional infliction of emotional distress and assault and battery

LPS contends it cannot be held liable for the intentional infliction of emotional distress or
the assault and battery caused by Whitmus. Specifically, LPS asserts that the alleged actions of
Whitmus were not taken in good faith, were intentional and deliberate, and were outside the scope
of Whitmus’ employment. LPS, therefore, contends that any cause of action for intentional
infliction of emotional distress or assault and battery is exempt under the GTCA.
Plaintiffs assert that their causes of action for intentional infliction of emotional distress
and assault and battery are not barred against LPS. Specifically, plaintiffs contend that the scope
of Whitmus’ employment is a question of fact and that at this early stage of the litigation, these
causes of action should be allowed to continue. Plaintiffs further contend that while they do not
contend that the abhorrent conduct of Whitmus was done in furtherance of LPS’ educational
mission, this should not preclude holding LPS liable under a theory of respondeat superior because
LPS’ failure to remedy the repeated instances of Whitmus’ inappropriate behavior allowed this
type of predatory behavior to become part of Whitmus’ scope of employment.
Under the GTCA,
The state or a political subdivision shall be liable for loss resulting
from its torts or the torts of its employees acting within the scope of
their employment subject to the limitations and exceptions specified
in The Governmental Tort Claims Act and only where the state or
political subdivision, if a private person or entity, would be liable
for money damages under the laws of this state. The state or a
political subdivision shall not be liable under the provisions of The

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Governmental Tort Claims Act for any act or omission of an
employee acting outside the scope of the employee’s employment.
Okla. Stat. tit. 51, § 153(A).

Further, the GTCA defines “scope of employment” as the

“performance by an employee acting in good faith within the duties of the employee’s office or
employment or of tasks lawfully assigned by a competent authority . . . .” Okla. Stat. tit. 51,
152(12). Additionally, courts have consistently found that the conduct involved in claims of
assault, battery, and intentional infliction of emotional distress fall outside the scope of an
employee’s employment, precluding respondeat superior liability on the part of a political
subdivision under the GTCA. See, e.g., Shaw v. City of Okla. City, 380 P.3d 894 (Okla. Civ. App.
2016); Scheerer v. City of Okla. City, No. 96-6178, 1997 WL 4276 (10th Cir. Jan. 7, 1997);
McMullen v. City of Del City, 920 P.2d 528 (Okla. Civ. App. 1996).
In light of the above authority, the Court finds that plaintiffs’ causes of action for
intentional infliction of emotional distress and assault and battery based upon respondeat superior
liability should be dismissed. Specifically, the Court finds that the conduct of Whitmus upon
which these causes of action are based is clearly bad faith conduct falling outside the scope of
Whitmus’ employment. No court could find that Whitmus’ alleged actions of texting sexually
explicit messages to B.F., hugging and kissing B.F., grouping B.F.’s private parts, and forcing
sexual intercourse upon B.F. would fall within Whitmus’ scope of employment as a band director.
Finally, the Court finds that any alleged failure to remedy Whitmus’ prior instances of
inappropriate behavior by LPS does not turn such bad faith conduct into conduct within the scope
of Whitmus’ employment.
Accordingly, the Court finds that plaintiffs’ intentional infliction of emotional distress and
assault and battery causes of action against LPS should be dismissed.

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3.

§ 1983

LPS asserts that plaintiffs’ claims under § 1983 should be dismissed. “[S]tate officials can
be liable for the acts of third parties where those officials ‘created the danger’ that caused the
harm.” Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262 (10th Cir. 1998) (internal
quotations and citations omitted).4
To make out a proper danger creation claim, a plaintiff must
demonstrate that (1) the charged state entity and the charged
individual actors created the danger or increased plaintiff’s
vulnerability to the danger in some way; (2) plaintiff was a member
of a limited and specifically definable group; (3) defendants’
conduct put plaintiff at substantial risk of serious, immediate, and
proximate harm; (4) the risk was obvious or known; (5) defendants
acted recklessly in conscious disregard of that risk; and (6) such
conduct, when viewed in total, is conscience shocking.
Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003) (internal citation omitted).
Having carefully reviewed plaintiffs’ Original Complaint, and presuming all of plaintiffs’
factual allegations are true and construing them in the light most favorable to plaintiffs, the Court
finds that plaintiffs have set forth sufficient factual allegations to state a danger creation claim. In
paragraphs 90 and 91 of their Original Complaint, plaintiffs allege:
90. Acting under the color of state law, Defendant LPS and
Defendant Board followed a course of deliberate indifference and
reckless disregard of the known dangerous conditions at Luther
Middle School when the official policy/custom of transporting
students to/from the band facility by school bus, without any safety
measures or checks designed to account for the whereabouts of each
and every student. This policy/custom relied upon Whitmus, only,
(a known predator of young, underage female students) to account
for the whereabouts of students. This official policy/custom was the
moving force behind Whitmus being able to be alone with B.F.
during school hours and on school property wherein Whitmus could

LPS asserts that it is unclear where in plaintiffs’ complaint they allege a danger creation due
process violation. Upon review of plaintiffs’ Original Complaint, the Court finds that plaintiffs
allege a danger creation due process violation in their Seventh Cause of Action.

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violate B.F.’s constitutional right to be free of sexual harassment and
sexual assault.
91. Defendant LPS and Defendant Board’s acts of deliberate
indifference and reckless disregard of the known dangerous
condition caused B.F.’s injuries and deprived B.F. of the right and
privileges afforded to her under 42 U.S.C. § 1983.
Original Complaint at ¶ 90 and 91. These allegations, in combination with the other allegations in
the Original Complaint, sufficiently allege that (1) LPS increased B.F.’s vulnerability to the danger
by its policy of allowing only Whitmus to account for the whereabouts of the students, (2) B.F.
was a member of the group of young, underage female students, (3) LPS’ conduct put B.F. at risk
of being sexually harassed or assaulted, (4) LPS knew that Whitmus was a predator of young,
underage female students based upon prior incidents with other female students, (5) LPS acted
recklessly in conscious disregard of that risk, and (6) such conduct, when viewed in total, is
conscience shocking.
Accordingly, the Court finds that plaintiffs’ § 1983 cause of action against LPS should not
be dismissed.
4.

Title IX

Title IX provides that “[n]o person in the United States shall, on the basis of sex, . . . be
subjected to discrimination under any education program or activity receiving Federal assistance.”
20 U.S.C. § 1681(a). To state a claim of school district liability under Title IX, a plaintiff “must
allege that the district (1) had actual knowledge of, and (2) was deliberately indifferent to (3)
harassment that was so severe, pervasive and objectively offensive that it (4) deprived the victim
of access to the educational benefits or opportunities provided by the school.” Murrell v. Sch.
Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1246 (10th Cir. 1999) (internal citation omitted).
“[H]arassment of persons other than the plaintiff may provide the school with the requisite notice

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to impose liability under Title IX.” Escue v. N. Okla. Coll., 450 F.3d 1146, 1153 (10th Cir. 2006).
Generally, courts “have required that the school have actual knowledge of a substantial risk of
abuse to students based on prior complaints by other students.” Id. at 1154 (internal quotations
and citations omitted).
Having carefully reviewed plaintiffs’ Original Complaint, and presuming all of plaintiffs’
factual allegations are true and construing them in the light most favorable to plaintiffs, the Court
finds that plaintiffs have set forth sufficient factual allegations to state a Title IX claim.
Accordingly, the Court finds that plaintiffs’ Title IX cause of action should not be dismissed.
5.

Plaintiff Angela Johnson’s individual § 1983 and Title IX claims

LPS asserts that plaintiff Angela Johnson’s individual § 1983 and Title IX claims are time
barred.5 Specifically, LPS contends that plaintiff Angela Johnson had discovered no later than
April 6, 2015, the allegations that her daughter was sexually abused by Whitmus, and her personal
claim accrued as of that date. LPS, therefore, contends that plaintiff Angela Johnson had until
April 6, 2017 to bring a claim against it pursuant to Title IX and § 1983 and because this action
was filed on October 4, 2017, plaintiff Angela Johnson’s claims are time barred.
Plaintiff Angela Johnson asserts that her Title IX and § 1983 claims are not time barred.
Specifically, plaintiff Angela Johnson asserts that the inappropriate relationship between B.F. and
Whitmus, in and of itself, is not the harm for which she seeks recovery, but it is LPS’ deliberate
indifference to the fact that one of its employees (Whitmus) exhibited predatory behavior well in
advance of the inappropriate relationship and LPS did nothing to protect B.F. and other students
from Whitmus that is the harm for which she seeks recovery. Plaintiff Angela Johnson, thus,

All parties agree that the statute of limitations for plaintiff Angela Johnson’s Title IX and § 1983
claims is two years.
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contends that these claims did not accrue until she learned of LPS’ prior knowledge and failure to
act at the preliminary hearing conference on February 25, 2016, and her Title IX and § 1983 claims
are, therefore, timely.
Having carefully reviewed the parties’ submissions, the Court finds that because plaintiff
Angela Johnson’s claims are based upon LPS’ deliberate indifference and failure to protect B.F.
based upon LPS’ prior knowledge of Whitmus’ predatory behavior, plaintiff Angela Johnson’s
Title IX and § 1983 claims did not accrue until she learned of LPS’ prior knowledge and failure to
act on February 25, 2016. The Court further finds that plaintiff Angela Johnson filed this action
within two years of the date her Title IX and § 1983 claims accrued. The Court, therefore, finds
that plaintiff Angela Johnson’s Title IX and § 1983 claims should not be dismissed.
III.

Conclusion
Accordingly, for the reasons set forth above, the Court GRANTS the Motion to Dismiss

by the Defendants Sherri Anderson, Matthew Mohr, Ray Stanfield, Aaron Bachhofer, Patrice
Christy and Donita Mackey in Their Individual Capacities [docket no. 15] and DISMISSES
defendants Sherri Anderson, Matthew Mohr, Ray Stanfield, Aaron Bachhofer, Patrice Christy and
Donita Mackey in their individual capacities. Further, the Court GRANTS IN PART and DENIES
IN PART the Motion to Dismiss by the Defendants Independent School District No. 3 of
Oklahoma County, Oklahoma; the Board of Education of the School of Luther; Sherri Anderson,
Matthew Mohr, Ray Stanfield, Aaron Bachhofer, Patrice Christy, and Donita Mackey, All in Their
Official Capacities as Luther School Board Members [docket no. 14] as follows: (1) the Court
DENIES the motion to dismiss as to plaintiffs’ Title IX and § 1983 claims, and (2) the Court
GRANTS the motion to dismiss as to plaintiffs’ claims against the Board of Education of the
School of Luther and Sherri Anderson, Matthew Mohr, Ray Stanfield, Aaron Bachhofer, Patrice

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Christy, and Donita Mackey in their official capacities as Luther School Board Members, and as
to plaintiff’s negligence, negligence per se, vicarious liability, intentional infliction of emotional
distress, and assault and battery causes of action and DISMISSES plaintiffs’ claims against the
Board of Education of the School of Luther and Sherri Anderson, Matthew Mohr, Ray Stanfield,
Aaron Bachhofer, Patrice Christy, and Donita Mackey in their official capacities as Luther School
Board Members, and plaintiff’s negligence, negligence per se, vicarious liability, intentional
infliction of emotional distress, and assault and battery causes of action.
IT IS SO ORDERED this 10th day of April, 2018.

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