Jojola v. Chavez

• Decision Date: 11 May 1995
• Docket Number: No. 94-2114,94-2114
• Parties: 100 Ed. Law Rep. 582 Patrick JOJOLA, Olita Jojola, as parents and next friends of Bridget Jojola, a minor child, Plaintiffs-Appellants, v. Jimmy CHAVEZ, Delbert Fraissenet, Fred Hayes, individually and in their official capacities, Defendants-Appellees, and Socorro Consolidated Schools Board of Education, a/k/a Socorro Consolidated Schools; Nividita Chawla, employee of Socorro Consolidated Schools, individually and in her official capacity, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 488

55 F.3d 488

100 Ed. Law Rep. 582

Patrick JOJOLA, Olita Jojola, as parents and next friends of

Bridget Jojola, a minor child, Plaintiffs-Appellants, v. Jimmy CHAVEZ, Delbert Fraissenet, Fred Hayes, individually and in their official capacities, Defendants-Appellees, and Socorro Consolidated Schools Board of Education, a/k/a

Socorro Consolidated Schools; Nividita Chawla,

employee of Socorro Consolidated

Schools, individually and in

her official

capacity,

Defendants.

No. 94-2114.

United States Court of Appeals, Tenth Circuit.

May 11, 1995.

Dennis K. Wallin, Albuquerque, NM, for plaintiffs-appellants.

Robert D. Castille and David B. Lawrenz of Simons, Cuddy & Friedman, Santa Fe, NM, for defendants-appellees Fraissenet and Hayes.

Jimmy Chavez, Milan, NM, pro se.

Before ANDERSON, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiffs-appellants Patrick and Olita Jojola filed this suit, under 42 U.S.C. Sec. 1983, on behalf of their daughter Bridget Jojola,

against the Socorro School Board and several of its employees. They sought relief against the defendants in their individual and official capacities for alleged violations of Bridget's constitutional rights. The district court dismissed the entire action for failure to state a claim, and the plaintiffs appeal, challenging only the district court's order dismissing the individual capacity suits against defendants Chavez, Hayes, and Fraissenet. Our jurisdiction arises under 28 U.S.C. Sec. 1291, and we affirm.

BACKGROUND

In 1991, Bridget Jojola, who was then a fifteen-year old tenth grade student at Socorro High School, was forcibly molested by defendant Chavez, the school's custodian. While Bridget was walking from a classroom to the girls rest room, during a regular school day, she was approached by Chavez, who led her into a dark, vacant classroom where he molested her. Chavez later pled guilty to one count of criminal sexual penetration, a second degree felony, and was sentenced and committed to prison for this crime. At the time of the attack, defendant Hayes was the principal of Socorro High School and defendant Fraissenet was the Superintendent of the Socorro Consolidated School District. The plaintiffs initiated this Sec. 1983 action, claiming the defendants' conduct violated Bridget's constitutional rights under the First, Fourth, Ninth, and Fourteenth Amendments to the Constitution, as well as alleging violations of state law.

The district court granted the defendants' motions to dismiss the federal claims, concluding the plaintiffs failed to demonstrate that defendants Hayes and Fraissenet knew Chavez had engaged in a pattern of violating female students' rights to be free from sexual abuse by school employees. The district court also concluded the complaint failed to state a claim against Chavez because his actions were not performed "under color of state law."

DISCUSSION

We review de novo the district court's dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. See Gagan v. Norton, 35 F.3d 1473, 1474 n. 1 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995). "We 'must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.' " Id. (quoting Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991)). Dismissal is only appropriate when the plaintiff can prove no set of facts to support a claim for relief. See Noland v. McAdoo, 39 F.3d 269, 273 (10th Cir.1994).

I.

Plaintiffs first argue their claims against Fraissenet and Hayes should not have been dismissed because they have shown Chavez engaged in a pattern of violations. Plaintiffs further argue that even if Fraissenet and Hayes did not have personal knowledge of the specific incidents, at a minimum, they had constructive notice of the incidents from other subordinates. We are not persuaded.

"[L]iability under Sec. 1983 must be predicated upon a 'deliberate' deprivation of constitutional rights by the defendant," and not on negligence. Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3038, 125 L.Ed.2d 724 (1993). Therefore, to impose personal liability on Fraissenet and Hayes, plaintiffs must allege, and prove, defendants actually knew of and acquiesced in Chavez's behavior. See Id. In order to show actual knowledge by Fraissenet and Hayes, the plaintiffs must prove "the defendants received notice of a pattern of violations of female students' constitutional rights to be free of sexual abuse at the hands of the school district's employees." Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir.1993). ¹ The plaintiffs attempt to show Fraissenet had actual knowledge of Chavez's improper contact with students based on his statement to the plaintiffs that problems involving Chavez had arisen prior to the attack on Bridget Jojola. ² The complaint specifically alleged a parent had informed the junior high school principal that Chavez had put a hole in the wall of the girls' locker room through which he watched girls using the facility. The plaintiffs also alleged rumors had circulated at the school concerning Chavez's improper sexual behavior. Finally, the plaintiffs alleged Fraissenet and Hayes should have been alerted by the rumors that they needed to investigate whether students were being sexually molested by Chavez.

Following a hearing on defendants' motion to dismiss, and upon invitation of the court, the plaintiffs requested leave to file an amended complaint with respect to defendants Hayes and Fraissenet. The court granted the motion, and the amended complaint was filed. It contained additional allegations in support of showing knowledge of Hayes and Fraissenet, including that a parent had complained to a previous principal of the high school that Chavez had made sexual comments to girls at the school, that Chavez was removed from his position as a school bus driver because of inappropriate behavior with a preteen female student, and that Chavez was transferred to the high school after he had unhooked brassieres of junior high school girls.

We believe these allegations are insufficient to meet the first requirement of Gates. Chavez was employed by the school district for nineteen years. The plaintiffs allege four incidents and other rumors, none of which we believe demonstrates the requisite pattern of behavior necessary to support imposing liability. Compare Thelma D. ex rel. Delores A. v. Board of Educ., 934 F.2d 929, 933 (8th Cir.1991) ("[F]ive complaints scattered over sixteen years cannot, as a matter of law, be said to comprise a persistent and widespread pattern of unconstitutional misconduct") and Jane Doe "A" ex rel. Jane Doe "B" v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir.1990) (even though various defendants were notified of isolated incidents occurring over a two-year period, no pattern of behavior was shown) with Doe v. Taylor Independent Sch. Dist., 15 F.3d 443, 446, 456-57 (5th Cir.) (en banc) ("It was no secret within the school community that [the teacher] behaved inappropriately toward a number of young female students;" defendant principal had received complaints about specific inappropriate sexual behavior on the part of the teacher toward specific students and had previously cautioned teacher about specific acts; these complaints served as "a clear signal" of the sexual relationship), cert. denied, --- U.S. ----, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994).

The plaintiffs presented no allegations, aside from one nonspecific statement by Fraissenet, that either Fraissenet or Hayes actually knew of the above incidents. Their argument that the defendants had constructive knowledge of these incidents is equally unavailing. "Imputation of constructive knowledge requires a showing that the underlying unconstitutional misconduct was 'so widespread or flagrant that in the proper exercise of its official responsibilities the governing body should have known of [it].' " Thelma D., 934 F.2d at 933 (quoting Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988)). The plaintiffs have not made such a showing, and therefore, the district court properly dismissed the complaint against defendants Fraissenet and Hayes.

II.

The district court also dismissed the plaintiffs' complaint against Chavez, holding he did not act "under color of state law" because his conduct was "so removed from his role as a custodian that [it] lack[ed] the color of law necessary for a fair attribution of his acts to the governmental entity, as required under Section 1983 claims." ³

A.

Section 1983 created a federal cause of action for damages to vindicate alleged violations of federal law committed by individuals acting "under color of state law." 42 U.S.C. Sec. 1983; see also Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 1830, 118 L.Ed.2d 504 (1992) ("[T]he purpose of Sec. 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails."); Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 1415, 63 L.Ed.2d 673 (1980) (Sec. 1983 was designed "to provide protection to those persons wronged by the '[m]isuse of power' "). The statute "creates no substantive civil rights, only a procedural mechanism for enforcing them." Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir.1995). Therefore, "the only proper defendants in a Section 1983 claim are those who 'represent [the state] in some capacity, whether they...