173 F.3d 1226 (10th Cir. 1999), 97-4019, Sutton v. Utah State School for Deaf and Blind

Docket Nº:97-4019.
Citation:173 F.3d 1226
Party Name:Kathi SUTTON, as Legal Guardian of James E. Sutton, II, a minor, Plaintiff-Appellant, v. UTAH STATE SCHOOL FOR THE DEAF AND BLIND, Dwight Moore, individually and in his official capacity as principal for the Utah State School for the Deaf and Blind, John Does 1-5, and Jane Does 1-5, Defendants-Appellees.
Case Date:March 01, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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173 F.3d 1226 (10th Cir. 1999)

Kathi SUTTON, as Legal Guardian of James E. Sutton, II, a

minor, Plaintiff-Appellant,



individually and in his official capacity as principal for

the Utah State School for the Deaf and Blind, John Does 1-5,

and Jane Does 1-5, Defendants-Appellees.

No. 97-4019.

United States Court of Appeals, Tenth Circuit

March 1, 1999

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Stacey L. Hayden of Poole & Associates, Salt Lake City, Utah, for Plaintiff-Appellant.

Brent Burnett (Debra J. Moore on the briefs) of Utah Attorney General's Office, Salt Lake City, Utah, for Defendants-Appellees.

Before HENRY, HOLLOWAY and LUCERO, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant, Kathi Sutton, on behalf of her minor son, James Sutton, brought the present action against defendants,

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Utah State School for the Deaf and Blind and Dwight Moore, its principal, in the Third District Court, State of Utah, in September 1996. An amended complaint was filed in October 1996 which expanded the plaintiff's claims to allege a federal civil rights violation under 42 U.S.C. § 1983, as well as state law claims of negligence, breach of contract and promissory estoppel. App. at 1-11. Defendants subsequently removed this action to the United States District Court for the District of Utah, by a notice of removal filed by the Office of the Attorney General of Utah. Id. at 12-14. The federal district judge, upon motion of defendants, dismissed the § 1983 cause of action with prejudice for failure to state a claim. App. at 152-160. With the dismissal of the sole federal claim, the district court declined to retain supplemental jurisdiction over the remaining state law claims and dismissed them without prejudice. Id. at 160.

This appeal followed. The central substantive issue before this court is whether the judge below erred in dismissing the § 1983 claim.


The plaintiff-appellant relies on these facts which she averred: James suffers from severe cerebral palsy, mental retardation, total blindness, and he is unable to speak. App. at 2. Because of his disabilities, James attended school at the Utah State School for the Deaf and Blind. Id. at 2. On February 16, 1995, James communicated to his mother, Kathi, that he had been sexually assaulted while using the bathroom at the school. Id. at 2. James communicated to Kathi through sign language that a boy at school had touched him several times in his genital area while James was in the bathroom; that the boy who touched him went to his school and was a very large boy, not in his class. Amended Complaint, p 7, App. at 2. Kathi immediately notified the school superintendent, Robertson, the principal, Moore, and James's teacher, LaRae Terry. The next morning Kathi met with Moore and Terry and told them exactly what James had told her. "She specifically informed them that James had told her that he had been repeatedly sexually abused, while he was going to the bathroom, at the school, by another student who was much larger than James." Id. at p 8, App. at 2.

In this meeting Moore and Terry repeatedly assured Kathi that the children were not allowed to go to the bathroom alone and that there was no way this could have happened to James. Id. at p 9, App. at 3. Moore and Terry took no further action and told Kathi there was nothing more they could do but provide constant supervision of James while in the bathroom. Kathi was reassured and promised by Moore and Terry that James would be supervised at all times while in the bathroom. Id. at p 10, App. at 3.

On February 23, 1995, James again complained to his mother that he had been assaulted by the same boy in the school's bathroom. Moore also notified Kathi of the assault and the assailant's apprehension on the same day. Amended Complaint, p 11, App. at 3. The juvenile assailant, a student at the school, was later convicted of gross lewdness and forcible sexual assault on James, arising from the two attacks in February 1995. During the assailant's trial, a teacher's aide at the school, Diana Rogers, testified that on February 23, she had escorted James to the bathroom and stood outside the open door waiting for him. 1 Id. at 97, 154. While James used the facilities, Rogers abandoned her post in order to answer a telephone. About three minutes after leaving the bathroom, Rogers returned to find the door closed. Id. Hearing a strange noise, Rogers entered the bathroom,

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forced open the stall, and discovered the same assailant molesting James. Id. Moreover, plaintiff-appellant avers that as a result of the School's and Moore's conduct, James has suffered severe physical and psychological harm, uncontrollable rages, severe nightmares, compulsive and uncontrollable behavior, and severe mental distress. App. at 5.

In February 1996, Kathi filed a Notice of Claim on behalf of James under Utah Code Ann. § 63-30-11 with the Utah Department of Education, the Utah Department of Risk Management, and the Utah Attorney General, seeking damages for physical pain and emotional distress. 2 App. at 100, 119-126, 154. In May 1996, the State of Utah denied liability and refused to pay any damages. Id. at 100-101, 128-129, 154. On September 6, 1996, Kathi filed the present action in Utah state court, alleging negligence. Id. at 101, 154. Kathi filed an amended complaint on October 7, 1996, in the state court, adding allegations of breach of contract, promissory estoppel, and a civil rights violation under 42 U.S.C. § 1983. In support of the latter claim, it was averred that defendants, by failing to supervise James and other students while in the restroom as school policy required, created the danger that permitted the assailant to repeatedly molest James while in the restroom unsupervised. Amended Complaint, p 23, App. at 6.

With this assertion of a federal claim, defendants removed the action to the United States District Court for the District of Utah and filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. at 12-14, 76-91. After conducting a hearing on defendants' motion in December 1996, the district judge entered his memorandum and order, finding that Kathi failed to allege the violation of a constitutional right under § 1983, and granting defendants' motion to dismiss with prejudice under Rule 12(b)(6) with respect to the sole federal claim. Id. at 152-160. The judge declined then to entertain the supplemental state law claims and dismissed them without prejudice.


At oral argument before this court, counsel for defendants raised for the first time the Eleventh Amendment 3 as a defense to plaintiff-appellant's claim. Because the Eleventh Amendment defense has jurisdictional attributes, see Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1559 (10th Cir.1992), modified on other grounds on reh'g, 995 F.2d 992, 994 (10th Cir.1993), it may be raised at any point, including for the first time on appeal. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n. 8, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); see also V-1 Oil Co. v. Utah St. Dep't of Pub. Safety, 131 F.3d 1415, 1419 (10th Cir.1997)(appellate court may raise and consider Eleventh Amendment immunity sua sponte).

The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal jurisdictional power of such compelling force that this Court will consider the issue arising under this amendment ... even though urged for the first time in this Court.

Ford Motor Co. v. Dep't of Treasury of Indiana, 323 U.S. 459, 467, 65 S.Ct. 347, 89 L.Ed. 389 (1945). If applicable, the Eleventh Amendment bars suits against

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states in federal court. V-1 Oil Co., 131 F.3d at 1420.


"Arm of the State"

Only a state or "arms" of a state may assert the Eleventh Amendment as a defense to suit in federal court. Ambus, 995 F.2d at 994. Whether a particular political subdivision is an "arm of the state" is determined by examining four factors: (1) the characterization of the governmental unit under state law; (2) the guidance and control exercised by the state over the governmental unit; (3) the degree of state funding received; and (4) the governmental unit's ability to issue bonds and levy taxes on its own behalf. Ambus, 995 F.2d at 994 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).

We have previously held that local school districts in Utah are not "arms of the state" for purposes of asserting the Eleventh Amendment. Ambus, 995 F.2d at 997 (noting that there was significant local board authority over school district operations and any "monetary damages awarded to plaintiff in this case would not come directly from the state treasury, but would be assessed against the school board...."). But Ambus does not necessarily determine the issue whether the Utah State School for Deaf and Blind is an arm of the state because the school is an entity independent of the local school district. See Utah Code Ann. § 53A-25-101-102 (School for the Deaf), § 53A-25-201-202 (School for the Blind); cf. Roach v. University of Utah, 968 F.Supp. 1446, 1450-51 (D.Utah 1997)(University of Utah is an "arm of the state."). 4

We are thus required to apply the four factors described above to determine whether the Utah State School for Deaf and Blind is an "arm of the state." 5 First, we examine its characterization under Utah law. Like local school districts, the School for Deaf and Blind shares in state sovereign immunity. See S.H. By and Through R.H. v. Utah, 865 P.2d 1363, 1364-65 (Utah 1993)(citing Utah...

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