Doe v. Russell County School Board et al

Filing 43

OPINION and ORDER granting in part and denying in part 19 Motion to Dismiss. Signed by Judge James P. Jones on 4/13/17. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JOHN DOE, AN INFANT, BY HIS NEXT )
)
FRIEND, REELIA WATSON,
)
Plaintiff,
)
)
v.
)
)
RUSSELL COUNTY SCHOOL BOARD )
)
D/B/A RUSSELL COUNTY PUBLIC
)
SCHOOLS, ET AL.,
)
Defendant.
)

Case No. 1:16CV00045
OPINION AND ORDER
By: James P. Jones
United States District Judge

Monica H. Beck and Douglas E. Fierberg, The Fierberg National Law
Group, PLLC, Lake Leelanau, Michigan, and Paul R. Thompson, III, The
Thompson Law Firm, PLLC, Roanoke, Virginia, for Plaintiff; Christopher S.
Dadak and Jim H. Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, for
Defendants Russell County School Board d/b/a Russell County Public Schools,
Phillip Henley, and Kimberly Hooker; W. Ethan Stewart, Stewart Law Office, P.C.,
Norton, Virginia, guardian ad litem for Defendant Bobby Gobble.
This civil case against a public school board and its employees arises out of
a school custodian’s long-term sexual abuse of the plaintiff, who was an
elementary school student at the time of the events. The custodian, defendant
Bobby Gobble, has pleaded guilty to numerous state charges and is currently
serving a 100-year sentence of incarceration.

In the instant case, the

pseudonymously named minor plaintiff has asserted two claims under Title IX of
the Educational Amendments of 1972, four claims pursuant to 42 U.S.C. § 1983

based on the violation of his Fourteenth Amendment substantive due process
rights, and various state law claims. Russell County School Board, doing business
as Russell County Public Schools, Phillip Henley, and Kimberly Hooker
(collectively “School Defendants”) have moved to dismiss the Complaint based on
an asserted lack of standing and failure to state claims upon which relief can be
granted. For the following reasons, the Motion to Dismiss will be denied as to the
standing issue, and granted in part and denied in part as to the remaining issues.
I.
The Complaint alleges the following facts, which I must accept as true for
the purpose of deciding the Motion to Dismiss.
Gobble was employed by the Russell County, Virginia, School Board
(“School Board”) as a janitor from 2006 until 2014. On February 12, 2014,
Gobble was arrested and confessed to serial sexual abuse of four boys, one of
whom was plaintiff John Doe. Gobble started abusing Doe in 2011, the year Doe
began attending Lebanon Elementary School (“LES”) as a nine-year-old third
grader.
Gobble’s abuse of Doe began on LES grounds. Gobble sexually abused Doe
in the custodian’s office and in the stock room.

Gobble convinced Doe’s

grandmother, who had legal custody of Doe, to allow Doe to live with Gobble for
more than a year, first at the home Gobble shared with his wife and later at the
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home of Gobble’s sister, who was also a custodian at LES. While Doe lived with
Gobble, Gobble allegedly slept in the same bed as Doe and sexually abused him
every night.
Henley, who was principal of LES while Doe was in third grade, allegedly
knew that Gobble had Doe living with him and that he took the child on weekend
trips. Henley failed to investigate this relationship and did not take any action.
Henley incorrectly assumed, and did not question, that Gobble and Doe were
related. Henley knew that Gobble had two other boys help him gather trash at LES
after school hours. Henley required Gobble to keep the custodian’s office door
closed at all times.
Hooker, who was principal of LES during Doe’s fourth grade year, knew
Gobble spent substantial sums of money on and time with Doe, during and outside
of school hours.

Hooker frequently saw Gobble with Doe at football and

basketball games after school hours. In the spring of that year, Hooker learned that
a complaint had been filed with the Department of Social Services (“DSS”)
alleging that Gobble was abusing Doe. Hooker sat in on DSS’ interviews of
Gobble and Doe in which they denied that anything had happened between them.
Following the interviews, Hooker told Gobble that if Doe was going to be at LES
after school hours, he should be in the after-school program. Hooker did not

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independently investigate the complaint and took no other action. DSS concluded
that the complaint was unfounded.
Various teachers and other School Board employees witnessed Gobble
acting inappropriately toward Doe and other male students. One teacher knew that
Gobble’s wife was jealous of Doe and was in the process of divorcing Gobble
because of his relationship with Doe. Gobble told the teacher that his wife had
called DSS about his living situation with Doe. The teacher witnessed that Gobble
always had his hands on Doe. The teacher observed Gobble acting obsessively and
overly friendly toward Doe and another one of his victims. The teacher observed
Gobble touching the other victim, A.M., who appeared very uncomfortable around
Gobble. Gobble had the teacher pass money to A.M. Despite this knowledge, the
teacher allowed Gobble to spend time in her classroom with students and to
remove students from her class and take them to the custodian’s office.
Other teachers and School Board employees knew that Gobble and Doe slept
in the same bedroom and that Gobble isolated himself with Doe on school
property, drove Doe to and from school, took him on out-of-state trips, and bought
him extravagant gifts. None of these teachers or staff members took any action or
made any reports about Gobble’s behavior toward Doe.
In the summer of 2013, a teacher visited her classroom to prepare for the
upcoming school year. The lights were turned off when she entered. After about
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ten minutes, she heard movement in the back of the room and found Gobble and
Doe hidden behind stacked boxes. She took no action in response to this incident.
The same summer, a school resource officer recommended Gobble to coach
a flag football team. The league coordinator learned that Doe lived with Gobble.
The coordinator became increasingly uncomfortable with Gobble’s behavior. At
the beginning of the next school year, Gobble became very upset because Doe did
not want to spend time with him. Gobble later told the coordinator that he was
happy because Doe’s little brother had taken Doe’s place.
In July, 2013, Doe’s mother regained custody of Doe, ended his sleepovers
with Gobble, and reduced the amount of time the two were permitted to spend
together. That fall, Doe began attending middle school and riding the bus to
school. A bus driver employed by the School Board passed notes from Gobble to
Doe such as, “Bobby loves you and misses you.” Compl. ¶ 79, ECF No. 1.
In November, 2013, LES Principal Price, who is not a defendant in this case,
noticed problems with the school’s video surveillance system, including with the
camera located outside the custodian office. On at least three occasions, Price
arrived at school to find the system unplugged. A maintenance employee who
investigated the problem told Price and an assistant principal that someone had
flipped the switch on the power strip controlling the surveillance system. Price
discussed the problem with Gobble and Gobble’s sister. Price told them he did not
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want anyone in his office and that he would clean his own office. After that
discussion, the problems with the security system ceased. Price and the assistant
principal suspected tampering but did not conduct any further investigation or
discipline any employee.
The plaintiff alleges that the School Defendants allowed Gobble to have
unsupervised and unrestricted access to LES, including its most isolated areas, at
all times of the day and year. They allowed Gobble to have unrestricted and
unsupervised access to LES students and to remove children from classes, often for
long periods of time. The School Defendants permitted Gobble to be alone with
Doe and other students in isolated areas of LES during and outside of school hours.
They allowed Gobble to give students money and candy for helping him with
custodial work.
On February 4, 2014, Gobble molested A.M. at LES, and A.M. told his
parents about the incident that night. A.M.’s stepfather reported the incident to
Principal Price, who notified the superintendant, who set in motion an
investigation.

Gobble was arrested about a week later.

Doe’s mother then

questioned Doe about Gobble, and Doe told his mother that Gobble had sexually
abused him. He stated that he had previously denied any abuse because Gobble
had threatened to kill him and his mother if he told anyone.

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After Gobble’s arrest, a forensic examination of the custodian office
computer, which Price said was an unauthorized computer, revealed files related to
Doe and Gobble’s other victims. Gobble’s personal electronic devices contained
hundreds of sexually explicit images. The Complaint alleges that Gobble produced
and distributed child pornography of Doe and his other victims.
The United States Department of Education, Office of Civil Rights, and the
Virginia Board of Education have repeatedly notified schools of the problem of
sexual assault and have enacted various requirements and recommendations for
training staff to recognize and respond to abuse and for handling reports of sexual
harassment. The Complaint alleges that the School Defendants failed to heed these
warnings and did not provide the required and recommended training for teachers,
administrators, staff, students, or parents. The School Defendants had no written
policies, procedures, or guidelines regarding reporting suspected abuse and neglect
to DSS. The School Defendants had not designated a Title IX coordinator.
Since Gobble’s arrest, the School Board has not offered Doe any counseling,
assistance, or access to meaningful information. Doe alleges that he has suffered
great psychological harm and will require therapy for the foreseeable future. The
harm caused to Doe has restricted and will continue to restrict his access to
educational opportunities.

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The School Defendants have moved to dismiss the Complaint for lack of
standing and failure to state claims upon which relief can be granted. The Motion
to Dismiss has been fully briefed and orally argued and is now ripe for decision.
II.
The School Defendants first contend that Reelia Watson, the next friend,
lacks standing to prosecute the action. The Complaint alleges that Watson has
Doe’s best interests in mind, but there are no allegations in the Complaint
regarding Watson’s relationship to Doe. The School Defendants contend that the
plaintiff has not pleaded facts showing that Watson is an appropriate next friend.
The issue raised by the School Defendants is not really one of standing. It is
undisputed that Doe clearly meets the requirements for standing, but Doe, as a
minor, does not have the legal capacity to file suit on his own. Federal Rule of
Civil Procedure 17(b)(1) provides that capacity to sue is a question for the law of
the individual’s domicile. In addition, the Rules state,
A minor or an incompetent person who does not have a duly
appointed representative may sue by a next friend or by a guardian ad
litem. The court must appoint a guardian ad litem — or issue another
appropriate order — to protect a minor or incompetent person who is
unrepresented in an action.
Fed. R. Civ. P. 17(c)(2).
Plaintiff Doe is a resident of Virginia. The Virginia statute addressing how a
minor may sue states, in its entirety: “Any minor entitled to sue may do so by his
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next friend. Either or both parents may sue on behalf of a minor as his next
friend.” Va. Code Ann. § 8.01-8. The Supreme Court of Virginia has concluded
that the statute was not intended to change the common law. Herndon v. St.
Mary’s Hosp., Inc., 587 S.E.2d 567, 569-70 (Va. 2003). In Wilson v. Smith, 63 Va.
493, 504-05 (1872), the court stated that
[a]ny person may bring a suit in the name of an infant as its next
friend, and ordinarily the court will recognize him as such next friend,
and take cognizance of the case as properly brought and prosecuted.
If it appear to the court that the suit is not for the benefit of the infant,
or that the person named as next frie[n]d is not a suitable person for
the purpose, the court may dismiss the suit without prejudice, or
assign another person to prosecute it as next friend of the infant. And
the court may, if it think fit, direct an enquiry by a commissioner to
ascertain whether the suit be for the benefit of the infant, or whether
the person prosecuting it as next friend be a fit person for that
purpose.
At oral argument, counsel for Doe represented that Doe is currently in foster
care. His mother is undergoing substance abuse treatment and does not have
custody of her son.

Doe’s father is not involved in his life, and Doe’s

grandmother, with whom he previously lived, is now deceased. Doe’s mother
asked Doe’s counsel to find a person who would be willing to serve as next friend.
Doe’s counsel suggested Watson, who agreed to serve in that capacity, and both
Doe and his mother consented. Though Watson did not previously know Doe, he
has talked with Doe, who is now almost fifteen years old.
experienced attorney who practices in this area of Virginia.
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Watson is an

In these circumstances, I am satisfied that Watson is an appropriate next
friend. Counsel for the School Defendants suggested that Doe’s foster parent
would be more appropriate, but foster parents have only temporary custody. The
governing statute does not forbid an unrelated third party from serving as next
friend, and the common law permits anyone to serve as next friend. I conclude that
Watson is capable of competently serving as Doe’s next friend, and I will deny the
Motion to Dismiss for lack of standing.
III.
The School Defendants have also moved to dismiss the claims against them
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state claims
upon which relief can be granted. “The purpose of a Rule 12(b)(6) motion is to
test the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178 F.3d 231,
243 (4th Cir. 1999). Rule 12(b)(6) does “not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[I]t does not
resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
In ruling on a motion to dismiss, the court must regard as true all of the factual
allegations contained in the complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007),

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and must view those facts in the light most favorable to the plaintiff, Christopher v.
Harbury, 536 U.S. 403, 406 (2002).
A. Count I.
Count I claims that the School Board’s actions and inactions violated Title
IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681-1688. The School
Defendants argue that this claim should be dismissed because the allegations do
not show that the School Board had actual knowledge that Gobble was abusing
Doe. They contend that a principal’s knowledge cannot be imputed to a school
board for purposes of Title IX because principals in Virginia do not have the
authority to hire and fire employees and thus are not proxies of the school board.
They also argue that the facts known by Henley and Hooker were consistent with
Gobble’s role as Doe’s caretaker and did not create actual knowledge of abuse.
The plaintiff responds that the 2013 DSS complaint gave Hooker actual
knowledge of abuse, and her lack of response amounted to deliberate indifference.
The plaintiff argues that an appropriate person’s deliberately indifferent response
to a report of sexual harassment can be imputed to the School Board under Fourth
Circuit precedent. To the extent there is any question whether Hooker was an
appropriate person under Title IX, the plaintiff contends that is a factual issue that
cannot be determined on a motion to dismiss.

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Title IX states 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 education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a).
To establish a Title IX claim on the basis of sexual harassment, a
plaintiff must show that (1) [he] was a student at an educational
institution receiving federal funds, (2) [he] was subjected to
harassment based on [his] sex, (3) the harassment was sufficiently
severe or pervasive to create a hostile (or abusive) environment in an
educational program or activity, and (4) there is a basis for imputing
liability to the institution.
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007). In Gebser v. Lago
Vista Independent School District, 524 U.S. 274, 277 (1989), the Supreme Court
held that under Title IX, a school district is not liable for damages based on sexual
harassment of a student by a teacher “unless an official of the school district who at
a minimum has authority to institute corrective measures on the district’s behalf
has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.”
The Court adopted that rule because the Title IX remedial scheme “is predicated
upon notice to an ‘appropriate person’ and an opportunity to rectify any violation,”
see 20 U.S.C. § 1682, and the Court defined an “appropriate person” as “an official
of the [federal funding] recipient entity with authority to take corrective action to
end the discrimination.” Gebser, 524 U.S. at 290.

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In Baynard v. Malone, 268 F.3d 228, 238 (4th Cir. 2001), the Fourth Circuit
held that a principal had constructive knowledge of a teacher’s sexual relationship
with a student, which was sufficient to support liability under 42 U.S.C. § 1983,
but that the evidence could not have led a reasonable juror to find that the principal
had the actual knowledge required under Title IX. The court of appeals also held
that “no rational jury could find that [the principal] was invested with the power to
take corrective action on behalf of the [the school board]” because a Virginia
principal does not have “the power to hire, fire, transfer, or suspend teachers.” Id.
at 238-39 (citing Va. Code Ann. § 22.1-295(A)). “Simply put, Virginia has made
an explicit policy decision that school principals do not exercise the powers of an
employer on behalf of the school district.” Id. at 239. Therefore, the Fourth Circuit
held that the principal’s knowledge of ongoing discrimination could not be
imputed to the school board. Id.
More recently, in Jennings, the Fourth Circuit considered a Title IX claim
against a university based on a coach’s harassment of a student. The student had
complained to the university’s legal counsel, who was responsible for fielding
sexual harassment complaints. Jennings, 482 F.3d at 700. The legal counsel
dismissed the complaint and took no action. Id.
In an en banc decision, the Fourth Circuit held that the legal counsel’s
knowledge and lack of action were sufficient to impose liability on the university.
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Id. at 700-01. “This notice and the University’s failure to take any action to
remedy the situation would allow a rational jury to find deliberate indifference to
ongoing discrimination.” Id. at 701. Importantly, the court of appeals did not
mention Baynard and did not analyze whether the legal counsel had the power to
hire, fire, transfer, or suspend the coach. The court instead relied solely on the
standard stated in Gebser:

“An institution can be held liable for a Title IX

violation only if an official who has authority to address the alleged discrimination
and to institute corrective measures has actual knowledge of discrimination in the
institution’s programs and fails adequately to respond or displays deliberate
indifference to discrimination.” Jennings, 482 F.3d at 700.1
Jennings appears to have impliedly overruled Baynard by applying a
different analysis. Jennings involved a university rather than a public school, and
it was a North Carolina case, so the Virginia statute relied upon in Baynard
obviously did not apply. Even so, the full Fourth Circuit decided the Jennings case
without ever mentioning the hiring and firing authority that was central to the
panel’s decision in Baynard. Based on Jennings, I conclude that Baynard is no
longer good law as to Title IX.
Gebser did not declare that “corrective measures” are limited to terminating,
transferring, or suspending the employee committing the harassment or abuse, and
1

I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
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the Third Circuit has found that “[t]he authority to supervise a teacher and to
investigate

a

complaint

of

misconduct

implies

the

authority

to

initiate corrective measures such as reporting her findings to her superior or to the
appropriate school board official at the very least.”

Warren ex rel. Good v.

Reading Sch. Dist., 278 F.3d 163, 173 (3d Cir. 2002). The Eleventh Circuit has
stated that the question of who is an appropriate person with authority to take
corrective measures is a factual issue, but that the majority of circuits have
concluded that principals have sufficient authority to impute liability to their
school boards. KB v. Daleville City Bd. of Educ., 536 F. App’x 959, 962-63 (11th
Cir. 2013) (unpublished).
Based on the Complaint’s allegations, it is plausible that Hooker could have
taken corrective measures such as conducting an independent investigation or
reporting Gobble’s conduct to the School Board or to law enforcement. As the top
supervisor and administrator at LES, she could have taken steps to prevent
Gobble’s access to Doe and other students on the LES grounds and to limit the
time Gobble could spend at LES after hours. I find that such actions would qualify
as corrective measures under Gebser. The Complaint alleges facts showing, at a
minimum, that Hooker was an official with authority to institute corrective
measures on the School Board’s behalf, that she had actual notice of Gobble’s
misconduct based on the DSS report, and that she was deliberately indifferent to
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Gobble’s misconduct, which satisfies the requirements of Gebser and Jennings. I
will deny the Motion to Dismiss as to Count I.
B. Count II.
Count II charges the School Board with violating Title IX by failing to take
corrective action after Gobble’s arrest. The plaintiff claims that despite actual
knowledge of abuse, the School Board failed to “provide, offer, recommend, or
coordinate adequate health, psychological, counseling, and academic assistance
and services to Plaintiff to minimize the harm he suffered,” Compl. ¶ 110, and
failed to terminate or discipline any School Board personnel as a result of their
handling of the situation. According to the plaintiff, this inaction constituted
deliberate indifference and materially impaired Doe’s access to educational
opportunities and benefits.
The School Board moves for dismissal of this count because (1) the
Complaint does not allege that Doe was still a student of the Russell County public
schools at the time of Gobble’s arrest; (2) the Complaint does not allege that Doe
requested counseling or accommodations; (3) the Complaint does not allege how
disciplining employees could have prevented or minimized Doe’s damages — in
other words, there is no causal link between this alleged inaction and Doe’s
damages; and (4) the Complaint alleges that Doe did receive treatment, which has
been or will be paid for by his mother.
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The plaintiff responds that these purported shortcomings are not required
elements of a Title IX claim. In its reply, the School Board contends that the
asserted issues go to the fourth element of a Title IX claim, that there must be a
basis for imputing liability to the School Board. Additionally, the School Board
notes that being a student of its school system is a required element of a Title IX
claim.
The Complaint alleges that Doe is a resident of Russell County and that after
his fourth grade year, he began attending middle school and no longer attended
LES. Though the Complaint does not expressly state that he attended a middle
school operated by the School Board, that fact can be inferred by the Complaint’s
allegation that he rode one of the School Board’s buses to the middle school during
the school year in which Gobble was arrested.
There is no question that at the time of Gobble’s arrest, the School Board
unequivocally knew, based on Gobble’s confession, that Gobble had abused Doe.
Under the standard articulated in Gebser, and for the reasons stated as to Count I,
liability can be imputed to the School Board in this case. At oral argument,
counsel for the School Defendants appeared to agree that Title IX requires a school
board to take action to remedy past sexual harassment of a student by an employee
once the school board obtains actual knowledge of the harassment. The School
Board cites no authority that would require a specific request for counseling in
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order to trigger a duty to provide remedial services. I find that Count II states a
plausible Title IX claim, and I will deny the Motion to Dismiss as to Count II.
C. Count III.
Count III is a failure-to-train claim asserted against the School Defendants
under 42 U.S.C. § 1983. Like Doe’s other § 1983 claims, it is based on the
violation of his Fourteenth Amendment substantive due process right to bodily
integrity and to be free from sexual abuse by a school employee, as well as his
property interest in a public education. The School Defendants argue that Count
III should be dismissed because the allegations do not establish deliberate
indifference or proximate cause.
“[T]here are limited circumstances in which an allegation of a ‘failure to
train’ can be the basis for liability under § 1983.” City of Canton v. Harris, 489
U.S. 378, 387 (1989). In the school context, the failure to train must amount to
deliberate indifference to the rights of students, and the deficiency in training
“must be closely related to the ultimate injury.” Id. at 391. “Where a plaintiff
claims that the [governmental body] has not directly inflicted an injury, but
nonetheless has caused an employee to do so, rigorous standards of culpability and
causation must be applied to ensure that the [governmental body] is not held liable
solely for the actions of its employee.” Bd. of Cty. Comm’rs. v. Brown, 520 U.S.
397, 405 (1997).
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The School Defendants’ “continued adherence to an approach that they
know or should know has failed to prevent tortious conduct by employees may
establish the conscious disregard for the consequences of their action — the
‘deliberate indifference’ — necessary to trigger [public entity] liability.” Id. at
407. “Without notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training program
that will cause violations of constitutional rights.” Connick v. Thompson, 563 U.S.
51, 62 (2011). Notice can be established by showing that the need for the training
and the risks of not providing the training were obvious. See Canton, 489 U.S. at
390; Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994).
I find that the plaintiff has adequately pleaded both deliberate indifference
and causation. The Complaint references prior sexual harassment of a middle
school student by a School Board employee, but that situation is likely too distinct
from Gobble’s behavior, in circumstances and in time, to evidence a pattern of
sexual abuse within the school district. Nevertheless, given the extensive rules and
guidance from the state and federal government on sexual harassment and sexual
violence in schools alleged in the Complaint, I conclude that the plaintiff has
plausibly asserted that the School Defendants’ complete failure to train teachers
and employees on how to spot, investigate, and address sexual assault amounted to
deliberate indifference. A jury could find that the risk of sexual assault was so
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obvious that no pattern of unconstitutional behavior by school staff was necessary
to put the School Defendants on notice of the need to train employees.
The School Defendants assert that all teachers must receive some relevant
training in order to be licensed in Virginia, but that argument amounts to a factual
contention that does not appear on the face of the Complaint. At this procedural
juncture, I am bound by the facts alleged in the Complaint, viewed in the light
most favorable to the plaintiff. Moreover, even if true, the fact that teachers
receive some training from other sources as a matter of course would not
necessarily relieve the School Board of a duty to implement its own training
program. Without examining evidence on the topic, I cannot say what particular
training the School Board’s teachers receive or whether that training satisfies the
School Board’s obligations under Title IX.
The School Defendants also argue that Gobble’s status as Doe’s caretaker,
rather than any failure to train, was the true cause or moving force behind the
abuse. But the Complaint alleges that the abuse started at the school, before Doe
began living with Gobble. Evidence later presented may lead to the conclusion
that a failure to train was not the proximate cause of Doe’s injuries, but that is not
an issue I can decide on a Motion to Dismiss. The Complaint’s allegations are
sufficient to state a failure-to-train claim, and I will deny the Motion to Dismiss as
to Count III.
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D. Counts IV and V.
Count IV asserts supervisory liability under § 1983 against Henley, and
Count V asserts supervisory liability under § 1983 against Hooker. Each claim
alleges that the respective principal had actual or constructive knowledge of
conduct by Gobble that posed a pervasive and unreasonable risk of constitutional
injury to Doe, and that the principal responded with deliberate indifference.
In order to establish liability under § 1983 in a case like this, a plaintiff must
show that (1) the defendant in a supervisory position had knowledge (actual or
constructive) that her subordinate was engaged in conduct that “posed a pervasive
and unreasonable risk of constitutional injury to citizens like the plaintiff”; (2) the
response by the defendant was so inadequate as to show deliberate indifference;
and (3) there was a causal link between the inaction and the injury suffered by the
plaintiff. See Baynard, 268 F.3d at 235. The School Defendants contend that the
allegations fail to establish these three elements.
The Fourth Circuit has defined constructive knowledge as “[k]nowledge that
one using reasonable care or diligence should have, and therefore that is attributed
by law to a given person.” Hoschar v. Appalachian Power Co., 739 F.3d 163, 175
(4th Cir. 2014). The Complaint alleges that Henley and Hooker knew or should
have known that Gobble was employing a multitude of grooming behaviors, was
removing students from class and isolating them in secluded areas of LES, and was
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inappropriately physical with and obsessive over Doe in particular. The Complaint
further alleges that in addition to living with Doe, Gobble was taking inappropriate
actions with respect to other male students who did not live with him, including
giving them money and candy and having them “help” him at the school after
hours.
To the extent that Henley and Hooker did not have actual knowledge of
these incidents, the Complaint plausibly alleges that they could easily have learned
about them by asking questions of LES teachers, or even by being more observant
while at the school.

A number of teachers allegedly witnessed Gobble’s

inappropriate behavior, and LES was equipped with a video surveillance system
whose viewing monitors were located in the principal’s office.
When Doe first began attending LES as a third-grade student, he was not
living with Gobble. Later that school year, Henley learned that Doe had moved in
with Gobble, who had worked at LES for about five years at that point. The two
did not share a last name, and the Complaint does not allege any facts that would
have justified an assumption that the two were related as family members. A jury
could justifiably conclude that those facts put Henley on notice of an inappropriate
relationship and obligated him to investigate with reasonable care and diligence.
As explained above with respect to Count I, the Complaint plausibly alleges that

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the report to DSS gave Hooker actual knowledge that Gobble’s behavior posed an
unreasonable risk of constitutional injury to Doe.
The School Defendants argue that Gobble’s observed behavior toward Doe
and other male students could have been innocent. They thus contend that they did
not have actual or constructive knowledge of abuse. That is a factual matter to be
later decided. The Fourth Circuit rejected a similar benign interpretation argument
in Baynard. 268 F.3d at 235. The plaintiff has adequately pleaded actual or
constructive knowledge.
It could also be reasonably concluded that the principals’ failure to take any
action, aside from Hooker sitting in on DSS’ interviews and then suggesting to
Gobble that Doe should be in the after-school program, was a deliberately
indifferent response to mounting evidence of misconduct. Henley and Hooker may
not have had the power to suspend or terminate Gobble, but there are numerous
other steps they presumably could have taken to investigate the situation and halt
the abuse.

For instance, they might have alerted the boy’s grandmother to

Gobble’s suspicious behavior; they might have instructed teachers not to allow
Gobble to remove students from class; they might have restricted Gobble’s afterhours access to the school and forbidden him from spending time with students
behind closed doors; they might simply have asked more questions of LES

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teachers and staff.2 It will have to be later decided in the case, based on the
evidence, whether Henley and Hooker took appropriate action or whether their
alleged failures to act amounted to deliberate indifference sufficient to impose
supervisory liability.

The Complaint adequately alleges the three elements

necessary for a supervisory liability claim, and I will deny the Motion to Dismiss
as to Counts IV and V.
E. Count VI.
Count VI asserts a § 1983 claim against the School Defendants based on a
special relationship theory. The School Defendants move for dismissal of Count
VI on the ground that the Fourth Circuit has stated that there is no special
relationship between a student and a school. The plaintiff argues that when a
student is isolated and falsely imprisoned in secluded rooms within the school, that
situation is more akin to institutionalization than to a typical student-school
relationship.
The School Defendants cite Stevenson ex rel. Stevenson v. Martin County
Board of Education, 3 F. App’x 25 (4th Cir. 2001) (unpublished). In Stevenson,
the court acknowledged that “if the state has a special relationship with an
individual, the state has an affirmative duty to protect the individual from harm

2

At the summary judgment stage or at trial, the evidence may show that Henley
and Hooker did some or all of these things. I express no opinion on what the evidence
may ultimately establish.
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inflicted by third parties.” Id. at 30. The court quoted the following explanation of
a special relationship set forth by the Supreme Court:
[W]hen the State by the affirmative exercise of its power so
restrains an individual’s liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic human
needs — e.g., food, clothing, shelter, medical care, and reasonable
safety — it transgresses the substantive limits on state action set by
. . . the Due Process Clause . . . . [I]t is the State’s affirmative act of
restraining the individual’s freedom to act on his own behalf —
through incarceration, institutionalization, or other similar restraint of
personal liberty — which is the “deprivation of liberty” triggering the
protections of the Due Process Clause, not its failure to act to protect
his liberty interests against harms inflicted by other means.
Id. (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197
(2001)). The Stevenson court noted that other circuits “have held uniformly that no
special relationship exists [between a school and a student] because the student is
not in physical custody and, along with parental help, is able to care for his basic
human needs.” Id. at 30-31. The Stevenson court followed suit, holding that
“[w]hen a student attends public school, his liberty is not restrained to the extent
contemplated in DeShaney. Attending school is not the equivalent of incarceration
or institutionalization.” Id. at 31.
Although the plaintiff presents a creative argument for an exception to this
general rule, he cites no authority for it. I do not believe that Gobble’s act of
secluding Doe in the custodial office is equivalent to the state restricting a person’s
liberty through incarceration. I find that the Complaint fails to plausibly allege a
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special relationship between Doe and the School Defendants and will grant the
Motion to Dismiss as to Count VI.
F. Count VII.
In Count VII, the plaintiff alleges that the School Defendants had a practice
and de facto policy of allowing Gobble to remove students from regular school
activities and confine them in secluded areas of the school where he could abuse
them, and that this practice and policy created a danger for Doe and other students.
According to the plaintiff, this practice and policy exhibited deliberate indifference
and reckless disregard for Doe’s constitutional rights. The School Defendants
argue that the Complaint at best shows inaction or omission and does not allege
any affirmative act by the School Defendants that created or increased a danger,
which is required to state a claim under this theory. In response, the plaintiff
asserts that allowing Gobble to remove students from class and take them to the
custodian office is not mere inaction but an affirmative act.
“[T]o establish § 1983 liability based on a state-created danger theory, a
plaintiff must show that the state actor created or increased the risk of private
danger, and did so directly through affirmative acts, not merely through inaction or
omission.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). The Fourth Circuit
has emphasized that “affirmative acts” in this context are limited in scope, and
courts should resist the temptation to recast inaction as affirmative action. Id. at
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441. In Robinson v. Lioi, a panel of the Fourth Circuit held that a police officer
had committed the requisite kind of affirmative acts when he conspired with a
suspect to evade arrest after a warrant had been issued, alerting the suspect to the
warrant and refusing to arrest the suspect on the false premise that the warrant
could not be found. 536 F. App’x 340, 344 (4th Cir. 2013) (unpublished). While
the suspect remained free, he killed his wife. Id. at 341. On these alleged facts,
the Fourth Circuit held that the plaintiff had stated a viable § 1983 claim against
the police officer under a state-created danger theory. Id. at 345-46.
In this case, the plaintiff has alleged that individual teachers, who are not
named as defendants, allowed Gobble to remove Doe and other students from their
classes, for no apparent educational purpose, and to spend time with them in
secluded areas of the school when they should have been in class. While those
allegations may amount to affirmative acts that increased the danger of sexual
assault, they were not acts committed by Henley, Hooker, or the School Board, the
defendants against whom Count VII is asserted. The plaintiff does not allege that
the School Defendants knew that teachers were allowing Gobble to remove
students from classes and to spend time with them behind closed doors. Therefore,
the Complaint fails to plausibly allege that the School Defendants created any
practice or de facto policy regarding Gobble removing students from classes. At
most, the Complaint alleges facts showing that the School Defendants failed to
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take action in response to observed grooming behaviors and the report made to
DSS. The Fourth Circuit has clearly indicated that a mere failure to act cannot
support liability under a state-created danger theory. I will grant the Motion to
Dismiss as to Count VII because that count fails to state a claim upon which relief
can be granted.
G. Qualified Immunity.
With respect to all of the § 1983 claims, Henley and Hooker assert that they
are entitled to qualified immunity. A § 1983 claim requires proof of the following
three elements: “(1) the deprivation of a right secured by the Constitution or a
federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v.
Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997). While state officials sued in
their official capacities are not “persons” under § 1983, Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989), state officials sued in their individual capacities are
“persons” within the meaning of the statute and are not absolutely immune from
suit, Hafer v. Melo, 502 U.S. 21, 31 (1991). A government official sued in his
individual capacity under § 1983 may, however, be entitled to qualified immunity.
Id. at 25 (“[O]fficials sued in their personal capacities . . . may assert personal
immunity defenses such as objectively reasonable reliance on existing law.”)
Qualified immunity “shields government officials from liability for civil
damages, provided that their conduct does not violate clearly established statutory
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or constitutional rights within the knowledge of a reasonable person.” Meyers v.
Balt. Cty., 713 F.3d 723, 731 (4th Cir. 2013). Qualified immunity is immunity
from suit rather than merely immunity from liability; therefore, the question of
qualified immunity should be decided before trial. Id. A defendant asserting
qualified immunity has the burden of proving the defense. Id.
A court deciding the applicability of qualified immunity must determine
“whether a constitutional violation occurred” and “whether the right violated was
clearly established.” Tobey v. Jones, 706 F.3d 379, 385 (4th Cir. 2013). A right
can be clearly established even if there does “not exist a case on all fours with the
facts at hand,” as long as pre-existing law makes the right apparent. Hunter v.
Town of Mocksville, 789 F.3d 389, 401 (4th Cir. 2015).

Where a plaintiff

“(1) allege[s] a violation of a right (2) that is clearly established at the time of the
violation,” a motion to dismiss on qualified immunity grounds must be denied.
Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012).
Here, the plaintiff has plausibly alleged that the School Defendants violated
his Fourteenth Amendment substantive due process right to be free from sexual
abuse at school.

The Fourth Circuit has stated that “[u]nder established

precedent,” students have a right to bodily integrity and to be free from sexual
abuse by state actors. Doe v. Rosa, 795 F.3d at 436-37 (citing Hall v. Tawney, 621

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F.2d 607, 612-13 (4th Cir. 1980)). Doe’s constitutional right to be free from
school-based molestation was clearly established at the time of these events.
The School Defendants argue that it was reasonable for them to view
Gobble’s actions as consistent with that of a caretaker, but that is a factual issue to
be later decided and not a basis for granting qualified immunity. Because the
plaintiff has alleged the violation of a clearly established right, the request for
qualified immunity is denied.
H. Counts IX and X.
Count IX asserts a state law negligence per se claim against Gobble, Henley,
Hooker, and as-yet-unnamed defendants based on alleged violations of Va. Code
Ann. §§ 18.2-371 and 16.1-228. The first statute, section 18.2-371, provides that
any adult who “willfully contributes to, encourages, or causes any act, omission, or
condition that renders a child delinquent, in need of services, in need of
supervision, or abused or neglected as defined in § 16.1-228” is guilty of a Class 1
misdemeanor. Section 16.1-228 defines “[a]bused or neglected child” to include a
child “[w]hose parents or other person responsible for his care creates or inflicts,
threatens to create or inflict, or allows to be created or inflicted upon such child a
physical or mental injury other than by accidental means.” The statute defines
“[c]hild in need of services” as “a child whose . . . condition presents or results in a
serious threat to the well-being and physical safety of the child.” Id. A “[c]hild in
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need of supervision” includes “[a] child who, while subject to compulsory school
attendance, is habitually and without justification absent from school,” if the
school has satisfied certain requirements to procure regular attendance. Id.
Count X asserts a negligence per se claim against Henley, Hooker, and asyet-unnamed defendants based on Va. Code Ann. § 63.2-1509(A), which states in
relevant part:
The following persons who, in their professional or official
capacity, have reason to suspect that a child is an abused or neglected
child, shall report the matter immediately to the local department of
the county or city wherein the child resides or wherein the abuse or
neglect is believed to have occurred or to the Department’s toll-free
child abuse and neglect hotline:
....
5. Any teacher or other person employed in a public or private
school, kindergarten or nursery school[.]
Henley and Hooker invoke sovereign immunity as to these negligence per se
claims. The plaintiff contends that the sovereign immunity inquiry raises factual
questions that cannot be decided on a motion to dismiss.
The Supreme Court of Virginia has stated that “[t]he existence of sovereign
immunity is a question of law.” Burns v. Gagnon, 727 S.E.2d 634, 644 (Va. 2012).
Four factors should be considered in determining whether a public employee is
entitled to sovereign immunity:
(1) the nature of the function the employee performs; (2) the extent of
the governmental entity’s interest and involvement in the function; (3)
the degree of control and direction exercised by the governmental
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entity over the employee; and (4) whether the alleged wrongful act
involved the exercise of judgment and discretion.
Id. at 646.
In Banks v. Sellers, the Supreme Court of Virginia held that a public school
“principal still performs a large number of discretional and managerial functions in
the school and, therefore, is entitled to [sovereign] immunity.” 294 S.E.2d 862,
865 (Va. 1982). In the more recent Burns case, however, the court found Banks
not dispositive because the Banks court had not applied the four-factor test stated
above. Burns, 727 S.E.2d at 646.
The defendant in Burns was a vice principal who had received a report that
a fight would occur at the school but did not take any action in response to the
report. Id. at 638. A student who was injured in the fight sued the vice principal
for simple and gross negligence.

Id.

The Burns court focused its analysis

exclusively on the fourth factor of the sovereign immunity test, noting that it was
the only factor on which the parties disagreed. Id. at 646.
The court held that the vice principal was entitled to sovereign immunity
because the vice principal’s response to the report “involved the exercise of
judgment and discretion.” Id. Upon receiving the report, the vice principal had to
decide whether, when, and how to respond. Id. Therefore, the court “conclude[d]
that his response (or lack thereof) was not simply a ministerial act; instead, it was
an act involving the exercise of judgment and discretion.” Id.
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In this case, the allegations show that Henley and Hooker exercised the same
kind of discretion in responding to evidence of Gobble’s sexual misconduct that
the vice principal in Burns had exercised in responding to news that a fight would
occur. Therefore, I find that the alleged facts as to the fourth factor support the
application of sovereign immunity. As to the other three factors, I conclude that
they also support the application of sovereign immunity. As school principals,
Henley and Hooker performed governmental functions. The operation of public
schools is a governmental function. Lentz v. Morris, 372 S.E.2d 608, 610 (Va.
1988). A school board “has official interest and direct involvement in the function
of student instruction and supervision, and it exercises control and direction over
[teachers and staff] through the school principal.” Id. Henley and Hooker are
entitled to sovereign immunity on the plaintiff’s negligence per se claim. I will
grant the Motion to Dismiss as to Counts IX and X.
I. Count XI.
Count XI asserts a claim of gross negligence against Henley, Hooker, and
as-yet-unnamed defendants. The School Defendants move to dismiss Count XI for
failure to state a claim, arguing that the Complaint does not allege any actual
knowledge of abuse by Henley and only alleges that Hooker knew of the complaint
to DSS made by Gobble’s wife. According to the School Defendants, although the
Complaint alleges that a number of teachers and school personnel observed
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Gobble’s behavior, there is no allegation that any of them told Henley or Hooker
what they had observed. They also argue that Hooker’s act of sitting in on the DSS
interviews of Gobble and Doe showed at least slight care, which undermines the
claim of gross negligence.
Sovereign immunity does not completely insulate Henley and Hooker from
liability for the plaintiff’s state law claims. “Rather, the degree of negligence
which must be shown to impose liability is elevated from simple to gross
negligence.”

Burns, 727 S.E.2d at 646.

“Gross negligence is a degree of

negligence showing indifference to another and an utter disregard of prudence that
amounts to a complete neglect of the safety of such other person.” Elliott v.
Carter, 791 S.E.2d 730, 732 (Va. 2016).

“Several acts of negligence which

separately may not amount to gross negligence, when combined may have a
cumulative effect showing a form of reckless or total disregard for another’s
safety.” K.L. v. Jenkins, No. 130786, 2014 WL 11398624, at *2 (Va. May 9, 2014)
(unpublished) (overturning trial court’s grant of demurrer on gross negligence
claim arising out of sexual assault of child at summer camp). “Ordinarily, the
question whether gross negligence has been established is a matter of fact to be
decided by a jury. Nevertheless, when persons of reasonable minds could not
differ upon the conclusion that such negligence has not been established, it is the
court’s duty to so rule.” Elliott, 791 S.E.2d at 732. “Because the standard for
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gross negligence in Virginia is one of indifference, not inadequacy, a claim for
gross negligence must fail as a matter of law when the evidence shows that the
defendants exercised some degree of care.” Id.
I find that the Complaint states a plausible claim of gross negligence. The
plaintiff has alleged sufficient facts to show that Henley and Hooker each had
knowledge of grooming behaviors and misconduct by Gobble. The evidence may
ultimately show that Henley and Hooker did not know about Gobble’s
inappropriate behavior or that they took some steps to curtail it, but it will take
evdience to decide who knew what, when, and how they responded. A jury could
reasonably conclude that simply sitting in on a DSS interview does not amount to
even slight care sufficient to undermine the gross negligence claim against Hooker.
According to the Complaint, Hooker took no steps to monitor Gobble or
investigate the situation following the intreview. Viewing the allegations in the
light most favorable to the plaintiff, Hooker’s alleged response could be found to
rise to the level of indifference required to support a gross negligence claim under
Virginia law. Likewise, it could be found that Henley’s failure to investigate or act
upon evidence of an inappropriate relationship between Gobble and Doe amounted
to deliberate indifference. I will deny the Motion to Dismiss as to Count XI.

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J. Counts XII and XIII.
Counts XII and XIII assert claims of assault and battery against Gobble and
the School Board. The School Board asserts that these claims are barred by
sovereign immunity and that they fail to state viable claims of vicarious liability
because Gobble’s tortious actions were outside the scope of his employment. The
plaintiff argues that the School Board is not entitled to sovereign immunity
because the provision of janitorial services is a proprietary function, not a
governmental function. The plaintiff further argues that because at least some of
the assaults and batteries occurred on school grounds while Gobble was supposed
to be performing custodial work, the assaults and batteries occurred in the scope of
Gobble’s employment, and the School Board can be held vicariously liable.
In Virginia, a governmental entity is generally immune from liability for
torts associated with the performance of governmental functions, but not for torts
associated with the performance of proprietary functions.

Niese v. City of

Alexandria, 564 S.E.2d 127, 132 (Va. 2002). “A function is governmental if it is
directly tied to the health, safety, and welfare of the citizens.” Id. In Niese, the
Supreme Court of Virginia held that a city was immune from intentional tort
liability based on rapes committed by a police officer during the investigation of a
citizen’s complaint because providing a police force is a governmental function.
Id. at 133.
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Maintaining public schools is also a governmental function. “The basis for a
school board’s immunity from liability for tortious injury has been generally found
in the fact that it is a governmental agency or arm of the state and acts in a
governmental capacity in the performance of its duties imposed by law.” Kellam v.
Sch. Bd. of Norfolk, 117 S.E.2d 96, 97 (1960). In Kellam, the Supreme Court of
Virginia held that a school board was entitled to sovereign immunity on a slip-andfall negligence claim asserted by a member of the public who had attended a
concert hosted by a third party at a school. Id. at 100. If the maintenance of
walkways on school grounds was considered a governmental function of the school
board in Kellam, then the provision of custodial services in a school must also be
considered a governmental function of the School Board here. Indeed, Kellam
seems to imply that every action taken by a school board is governmental in nature.
Id. at 97-98.
I find that sovereign immunity shields the School Board from liability for
the assaults and batteries committed by Gobble, and I will grant the Motion to
Dismiss as to Counts XII and XIII as to the School Board.
K. Count XIV.
Count XIV asserts a claim of intentional infliction of emotional distress
against Gobble and the School Board.

The School Board invokes sovereign

immunity as to this claim as well. For the reasons stated above, I find that this tort
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claim is also barred by sovereign immunity. I will grant the Motion to Dismiss as
to Count XIV as to the School Board.
IV.
For the foregoing reasons, it is ORDERED that the Motion to Dismiss, ECF
No. 19, is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to
Counts VI, VII, IX, X, XII, XIII, and XIV of the Complaint and those counts are
hereby dismissed as against the School Defendants. In all other respects, the
Motion to Dismiss is DENIED.
ENTER: April 13, 2017
/s/ James P. Jones
United States District Judge

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