C., A. et al v. School District of La Crosse et al

Filing 15

OPINION AND ORDER granting 7 Motion to Dismiss as to the federal claims and dismissing the state law claims without prejudice. Signed by District Judge Barbara B. Crabb on 9/28/18. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - A.M.C., by her parents and legal guardians,
J.C. and N.C., J.C. and N.C.,
OPINION AND ORDER
Plaintiffs,
18-cv-175-bbc
v.
SCHOOL DISTRICT OF LA CROSSE,
BENJAMIN R. BURNS, DAVID APONTE,
JOHN DOE 1-50, JANE DOE 1-50 and
AEGIS CORPORATION,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - Plaintiff A.M.C. is a high-school age student with Down Syndrome and cognitive
disabilities. In 2015, while she was enrolled as a special education student at La Crosse Central
High School, she was sexually assaulted by another student with cognitive disabilities. A.M.C.
and her parents filed this suit under 42 U.S.C. § 1983 and state law, seeking to hold the School
District of La Crosse and two of its former employees, Benjamin Burns and David Aponte, liable
for plaintiffs’ injuries.
Now before the court is defendants’ motion to dismiss. Dkt. #7. Defendants argue that
plaintiffs’ allegations are insufficient to state a federal claim upon which relief may be granted
and that they are protected by qualified immunity. Defendants also argue that plaintiffs’ state
law claims should be dismissed on immunity grounds. For the reasons below, I am granting the
motion with respect to plaintiffs’ federal claims. Because plaintiffs rely on 28 U.S.C. § 1367 as
the basis for exercising jurisdiction over their state law claims, the court will dismiss those claims
under § 1367(c)(3) without prejudice to plaintiffs’ refiling of them in state court.

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Plaintiffs allege the following facts in their complaint.

ALLEGATIONS OF FACT
Plaintiff A.M.C. is a high-school age individual who has Down Syndrome and a cognitive
disability. She functions at the level of a 9 or 10 year old and has difficulty understanding
whether a situation or person is safe. In 2015, A.M.C. was enrolled as a special needs student
at the La Crosse Central High School, located within defendant School District of La Crosse.
Defendant Benjamin Burns was a school psychologist and defendant David Aponte was a case
manager at La Crosse Central. Defendants Burns and Aponte knew about A.M.C.’s disability
and special vulnerability to danger and knew she should be supervised at all times while she was
present at school. When A.M.C.’s parents enrolled her at La Crosse Central in September 2015,
they declined to sign a form that would have given A.M.C. permission to temporarily leave the
high school grounds for any reason.
A.S.L. is a male student enrolled at La Crosse Central High School with cognitive
disabilities resulting from a traumatic brain injury. Sometime before September 2015, A.S.L.
had sexually assaulted two girls at the high school, including a girl with Down Syndrome whom
he had sexually assaulted several times at school and on a school bus. (Plaintiffs’ complaint does
not provide any details about the nature of these previous sexual assaults.) Defendants were
aware of the previous incidents and were supposed to supervise A.S.L. “100% of the time” while
he was at the high school. However, in September 2015, defendants Burns and Aponte decided
to give A.S.L. more freedom and chose not to supervise him constantly.
On September 21, 2015, plaintiff A.M.C. and A.S.L. were in the special education

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hallway during lunch time. A.M.C. went to her locker and A.S.L. followed her. A.S.L. then
steered A.M.C. from her locker, through the hallway and outside. Defendant Aponte watched
A.S.L. follow A.M.C. to her locker and lead her outside, but did not intervene. After going
outside, A.S.L. took A.M.C. to an area near the track and sexually assaulted her.

OPINION
Plaintiffs contend that defendants Aponte and Burns violated A.M.C.’s right to
substantive due process under the Fourteenth Amendment and committed the state law tort of
negligence by failing to prevent the sexual assault on A.M.C. A.M.C.’s parents, J.C. and N.C.,
also bring a claim for loss of companionship, and all plaintiffs bring indemnification claims
against defendant School District of La Crosse. Defendants move to dismiss plaintiffs’ due
process claims for failure to state a claim upon which relief may be granted and on the grounds
of qualified immunity. Defendants move to dismiss the state law claims on immunity grounds.

A Substantive Due Process
Plaintiffs contend that defendants violated A.M.C.’s right to substantive due process by
failing to prevent A.S.L. from sexually assaulting her. However, the Fourteenth Amendment
does not generally impose a duty on governmental employees to protect individuals from harm
by private actors. The due process clause places a limitation on the state’s power to act; it does
not act “as a guarantee of certain minimal levels of safety and security.”

DeShaney v.

Winnebago County Dept. of Social Services, 489 U.S. 189, 195 (1989). Its purpose is “to
protect people from the State, not to ensure that the State protect[s] them from each other.”

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Id. at 196. See also Paine v. Cason, 678 F.3d 500, 508 (7th Cir. 2012) (“[T]he Constitution
is a charter of negative liberties rather than a source of rights to protection or treatment.”).
Thus, in DeShaney, the Supreme Court concluded that “a State’s failure to protect an individual
against private violence simply does not constitute a violation of the Due Process Clause.” Id.
at 197.
This principle has two exceptions. First, the state must protect individuals with whom
it has a “special relationship,” such as a custodial relationship that cuts off alternative avenues
of aid. D.S. v. East Porter County School Corp., 799 F.3d 793, 798 (7th Cir. 2015)(citing
Monfils v. Taylor, 165 F.3d 511, 516 (7th Cir. 1998)). The Supreme Court has noted that a
special relationship exists when the state incarcerates a prisoner, Estelle v. Gamble, 429 U.S. 97,
103–04 (1976), or involuntarily commits someone to an institution. Youngberg v. Romeo, 457
U.S. 307, 315–16 (1982). The Court reasoned in DeShaney that:
when 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 Eighth
Amendment and the Due Process Clause.
DeShaney, 489 U.S. at 200. The Court explained that “[t]he affirmative duty to protect arises
not from the State’s knowledge of the individual’s predicament or from its expressions of intent
to help him, but from the limitation which it has imposed on his freedom to act on his own
behalf.” Id.
Second, the “state created danger” exception applies when “a state actor’s conduct
‘creates, or substantially contributes to the creation of, a danger or renders citizens more
vulnerable to a danger than they otherwise would have been.’” D.S., 799 F.3d at 798 (quoting

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Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993)). This exception consists of three
elements: (1) the state, by its affirmative acts, created or increased a danger faced by an
individual; (2) the state’s failure to protect that individual from danger was the proximate cause
of her injury; and (3) the state’s failure to protect shocks the conscience. Id.
Plaintiffs argue that A.M.C. has a viable substantive due process claim based on the
“special relationship” and “state created danger” doctrines. Defendants argue that plaintiffs’
allegations are inadequate to invoke either exception. Alternatively, defendants argue that they
are entitled to qualified immunity with respect to plaintiffs’ due process claims.
The doctrine of qualified immunity shields officials from civil liability so long as their
conduct “‘does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citing
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). A clearly established right is one that is “sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Reichle v. Howards,
566 U.S. 658, 664 (2012). In other words, “existing precedent must have placed the statutory
or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). I
address each of the parties’ arguments below.

1. Special relationship exception
Defendants contend that plaintiffs cannot proceed under the “special relationship”
exception to the limitations of due process because plaintiffs’ allegations do not suggest that the
school district or any individual defendant had custody or control over A.M.C. sufficient to

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create a “special relationship” requiring constitutional protection. Defendants point out that
the Supreme Court has never recognized a school as having a special relationship with a student,
and the Court of Appeals for the Seventh Circuit has held specifically that schools do not
generally have a special relationship with their students. See, e.g., Stevens v. Umsted, 131 F.3d
697, 702-03 (7th Cir. 1997); J.O. v. Alton Community Unit School District 11, 909 F.2d 267,
268, 272–73 (7th Cir. 1990) (“At most, the state might require a child to attend school . . . but
it cannot be suggested that compulsory school attendance makes a child unable to care for basic
human needs. The parents still retain primary responsibility for feeding, clothing, sheltering, and
caring for the child.”).
Several other courts have also concluded that public schools do not have a special
relationship with a student that would require the school to protect the student from harm at
the hands of a private actor. See, e.g., Doe ex rel. Magee v. Covington County School Dist. ex
rel. Keys, 675 F.3d 849, 858 (5th Cir. 2012) (“[E]ach circuit to have addressed the issue has
concluded that public schools do not have a special relationship with their students, as public
schools do not place the same restraints on students’ liberty as do prisons and state mental
health institutions.”); Patel v. Kent School District, 648 F.3d 965, 968–69, 972–74 (9th Cir.
2011); Stevenson ex rel. Stevenson v. Martin County Board of Education, 3 Fed. Appx. 25, 27,
30–31 (4th Cir. 2001); Hasenfus v. LaJeunesse, 175 F.3d 68, 69–72 (1st Cir. 1999); Wyke v.
Polk County School Board, 129 F.3d 560, 563, 568–70 (11th Cir. 1997); Dorothy J. v. Little
Rock School District, 7 F.3d 729, 731–34 (8th Cir. 1993); D.R. v. Middle Bucks Area
Vocational Technical School, 972 F.2d 1364, 1366, 1370–73 (3d Cir. 1992). Courts have
found no special relationship even where the student is cognitively disabled and in a special

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education program. See, e.g., Patel, 648 F.3d at 968 (no special relationship existed between
public school and developmentally disabled high-school student and); Stevens, 131 F.3d at 699700 (no special relationship between school and developmentally disabled student with visual,
hearing and other difficulties); Dorothy J. v. Little Rock School District, 7 F.3d at 731 (no
special relationship between school and cognitively disabled student in restrictive special
education program).
In response, plaintiffs do not identify any case in which a court has concluded that a
public school had a special relationship with a student sufficient to support a due process claim.
Nonetheless, plaintiffs argue that their claim is not foreclosed because the Court of Appeals for
the Seventh Circuit has commented that there could be a situation in which a school has a
“special relationship” with a student. Specifically, the court stated in a footnote in Nabozny v.
Podlesny, 92 F.3d 446, 459, n.13, (7th Cir. 1996), that there may be situations in which a
public school is “in a custodial relationship with its students,” such as where the school has a
high level of control over the students. Plaintiffs argue that their allegations suggest that La
Crosse Central High School had a “custodial relationship” with A.M.C. in light of her cognitive
disabilities and need to be constantly supervised while she was at the school. They argue that
these allegations are sufficient to constitute the situation suggested by the footnote in Nabozny.
Plaintiffs’ argument is not persuasive. Because the plaintiff in Nabozny was not pursuing
a special relationship theory, the court of appeals did not define specifically when a special
relationship would exist between a school and student, and the court has not provided any
further guidance since Nabozny. However, several cases suggest that the relationship between
school and student would need to be more “custodial” in nature and involve a higher level of

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restraint than plaintiffs’ allegations in this case suggest. E.g., Stevens, 131 F.3d at 702 (special
relationship may exist if there is “a degree of restraint on an individual’s personal liberty that
make them sufficiently similar to the situations of incarceration and institutionalization”).
Plaintiffs do not allege that A.M.C. was placed involuntarily at La Crosse Central High School
or that her parents no longer had custody over her and were responsible for her well-being.
DeShaney, 489 U.S. at 199-200 (“[W]hen the State takes a person into its custody and holds
him there against his will, the Constitution imposes upon it a corresponding duty to assume
some responsibility for his safety and general well-being.”) Moreover, it is not enough that the
school was responsible for supervising A.M.C. during the school day, because plaintiffs have not
alleged that A.M.C.’s parents relinquished to the school all control or responsibility for providing
her basic needs. Stevens, 131 F.3d at 703 (citing D.R. by L.R., 972 F.2d at 1372 (“[T]he school
defendants’ authority over D.R. during the school day cannot be said to create the type of
physical custody necessary to bring it within the special relationship noted in DeShaney,
particularly when their channels for outside communication were not totally closed.”)).
Accordingly, I conclude that plaintiffs’ allegations are not sufficient to state a substantive due
process claim based on a “special relationship” theory.
Moreover, even if I were to assume that plaintiffs’ allegations are sufficient to suggest that
defendants’ high level of control over A.M.C. equated to “custody” over A.M.C. such that a
“special relationship” existed for purposes of due process, plaintiffs cannot overcome defendants’
qualified immunity defense. Plaintiffs have identified no legal authority stating that a school
has a special relationship with students with severe disabilities, let alone “existing precedent”
that places the question “beyond debate.” Ashcroft, 563 U.S. at 741. Rather, as stated above,

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numerous courts have rejected plaintiffs’ theory. Thus, the contours of the “special relationship”
in the special education context are not so clear that defendants would have known that they
were obligated under the Fourteenth Amendment to protect A.M.C. from sexual assault by
another student. Therefore, plaintiffs’ due process claim based on a “special relationship” will
be dismissed.

2. State-created danger exception
Plaintiffs also seek to proceed on a substantive due process claim under the state-created
danger doctrine. Under the state-created danger doctrine, “a substantive due process claim can
proceed where the state ‘affirmatively places a particular individual in a position of danger the
individual would not otherwise have faced.’” Wilson–Trattner v. Campbell, 863 F.3d 589, 593
(7th Cir. 2017) (quoting Doe v. Village of Arlington Heights, 782 F.3d 911, 916 (7th Cir.
2015)). Defendants argue that plaintiffs cannot succeed on a state-created danger theory
because plaintiffs cannot satisfy any of the required elements of the claim. In particular,
defendants argue that plaintiffs cannot show that (1) defendants took affirmative acts that
created or increased the danger to A.M.C.; (2) defendants’ failure to protect A.M.C. from danger
was the proximate cause of her injury; and (3) defendants’ failure to protect A.M.C. shocks the
conscience. D.S., 799 F.3d at 798 (setting forth elements of state-created danger theory).
Because I agree with defendants that plaintiffs cannot satisfy the first element of a state-created
danger theory, I need not address the remaining elements.
To satisfy the first element of a state-created danger claim, plaintiffs’ allegations must
suggest that defendants took an affirmative act that created or increased the danger that caused

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A.M.C.’s harm. King ex rel. King v. East St. Louis School District 189, 496 F.3d 812, 817–18
(7th Cir. 2007). See also Stevens, 131 F.3d at 705 (“[P]laintiff must plead facts showing some
affirmative act on the part of the state that either created a danger to the plaintiff or rendered him
more vulnerable to an existing danger.”) (emphasis in original). The court of appeals has
cautioned that “[t]o ‘create or increase’ must not be interpreted so broadly as to erase the
essential distinction between endangering and failing to protect and thus circumvent DeShaney’s
general rule.” Doe v. Village of Arlington Heights, 782 F.3d 911, 917 (7th Cir. 2015). “When
courts speak of the state’s ‘increasing’ the danger of private violence, they mean the state did
something that turned a potential danger into an actual one, rather than that it just stood by
and did nothing to prevent private violence.” Id. (citation omitted).
In this instance, plaintiffs argue that they have alleged two affirmative acts that increased
the danger of sexual assault to A.M.C.: (1) defendants Aponte and Burns’s decision to give
A.S.L. “more freedom” at the high school in September 2015; and (2) Aponte’s permitting
A.S.L. to lead A.M.C. outside shortly before the assault. However, these “actions” are actually
allegations of “inaction.” Plaintiffs’ allegations suggest that “giving freedom” to A.S.L. means
only that school officials failed to supervise A.S.L. as closely as they previously had. Similarly,
Aponte’s “permitting” A.S.L. to lead A.M.C. outside means only that Aponte failed to intervene
to prevent A.M.C. from going outside unsupervised. Thus, plaintiffs have alleged only that
defendants “just stood by and did nothing to prevent private violence,” which is not enough to
proceed on a state-created danger theory. Village of Arlington Heights, 782 F.3d at 917. See
also Wilson–Trattner, 863 F.3d at 596 (“Mere indifference or inaction in the face of private
violence cannot support a substantive due process claim[.]”). In sum, it is not enough for

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plaintiffs to allege that A.M.C.’s harm could have been averted if defendants had acted.
Sandage, 548 F.3d at 597 (“If all that were required was a causal relation between inaction and
harm, the rule of DeShaney would be undone.”) Rather, plaintiffs must allege that A.M.C. was
“safe before the state intervene[d] and unsafe afterward.” Id. at 598. Plaintiffs’ allegations fail
to meet this standard.
Finally, even if plaintiffs’ allegations suggested that defendants took an affirmative act
that increased or created the danger to A.M.C., defendants are entitled to qualified immunity.
Plaintiffs’ allegations do not implicate a clearly established constitutional right. The court of
appeals has stated that the “state-created danger exception is a narrow one,” Village of Arlington
Heights, 782 F.3d at 917, and has applied it in only a few cases, all of which are clearly
distinguishable from the present case. For example, in White v. Rochford, 592 F.2d 381 (7th
Cir. 1979), the police arrested a driver for drag racing and left the children passengers stranded
alone in the car on a busy highway on a cold night. In Reed v. Gardner, 986 F.2d 1122 (7th Cir.
1993), the court concluded that police officers could be held liable under the state-created
danger exception where they arrested a sober driver and left behind an obviously drunk
passenger with the keys to the vehicle who later caused a collision, injuring the plaintiffs. In
Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998), an informant was murdered by a crime suspect
after police officers gave the suspect a recording of the victim's voice, even though the informant
“begged” them not to release the recording. More recently, in Paine v. Cason, 678 F.3d 500
(7th Cir. 2012), the police arrested a mentally-ill woman in a safe area and then released her into
a dangerous neighborhood, where she was later raped and fell or jumped from the seventh floor
of a building. “In each of these cases, the police encountered a potential danger and turned it

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into an actual one.” Arlington Heights, 782 F.3d at 917.
Plaintiffs’ allegations are not sufficiently similar to those cases in which the court of
appeals has applied the state-created danger exception. Instead, plaintiffs’ allegations are more
similar to the many cases in which courts have found that inaction by the state is not enough
to trigger an obligation to act. E.g., Windle v. City of Marion, Indiana, 321 F.3d 658, 661-62
(7th Cir. 2003) (police officer’s failure to intervene to protect student despite knowledge that
she was being sexually molested by middle school teacher was “inaction” that did not create or
increase her danger); Arlington Heights, 782 F.3d at 917 (officer who left woman alone with
three intoxicated men who later sexually assaulted her did not create danger or make any danger
worse); Stevens, 131 F.3d at 705 (“[i]naction by the state in the face of a known danger is not
enough to trigger the obligation [to protect citizens from each other]”). For these reasons, I
conclude that defendants are entitled to qualified immunity on plaintiffs’ state-created danger
theory.

B. State Law Claims
Plaintiffs’ substantive due process claims are the only federal claims raised in their
complaint. Plaintiffs rely solely on 28 U.S.C. § 1367 to support exercise of jurisdiction over
their state law claims. Under these circumstances, the general rule is that federal courts should
relinquish jurisdiction over state law claims if all federal claims are resolved before trial. 28
U.S.C. § 1367(c)(3); Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015). Because I see no
reason to depart from the general rule in this case, I will dismiss plaintiffs’ state law claims
without prejudice to their refiling those claims in state court.

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ORDER
IT IS ORDERED that the motion to dismiss filed by defendants School District of La
Crosse, Benjamin R. Burns, David Aponte and Aegis Corporation, dkt. #7, is GRANTED as to
the federal claims in this case. The state law claims are DISMISSED without prejudice in
accordance with 28 U.S.C. § 1367(c)(3).

Entered this 28th day of September, 2018.
BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge

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