Arbaugh v. Board of Educ., County of Pendleton

• Decision Date: 06 August 2004
• Docket Number: No. CIV.A.2:01 CV 50.,CIV.A.2:01 CV 50.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Tony Dean ARBAUGH, Jr. Plaintiff, v. BOARD OF EDUCATION, the COUNTY OF PENDLETON, a public corporation, Ferlin Heavener, individually, and in his capacity as an employee of the Pendleton County Board of Education, Calvin Thompson, individually, and in his capacity as Principal at Circleville School for the Pendleton County Board of Education, and West Virginia Department of Health and Human Resources, a government entity, Defendants.

329 F.Supp.2d 762

Tony Dean ARBAUGH, Jr. Plaintiff, v. BOARD OF EDUCATION, the COUNTY OF PENDLETON, a public corporation, Ferlin Heavener, individually, and in his capacity as an employee of the Pendleton County Board of Education, Calvin Thompson, individually, and in his capacity as Principal at Circleville School for the Pendleton County Board of Education, and West Virginia Department of Health and Human Resources, a government entity, Defendants.

No. CIV.A.2:01 CV 50.

United States District Court, N.D. West Virginia.

August 6, 2004.

Lary D. Garrett, Jack Walters, Moorefield, WV, Jeffrey R. Roth, Roth Legal Services, LC, Petersburg, WV, for plaintiff Tony Dean Arbaugh, Jr.

Jacquelyn J. Core, Steptoe & Johnson, Morgantown, WV, Henry E. Brown, Steptoe & Johnson, Clarksburg, WV, for defendant Board of Education, The County of Pendleton, a public corporation.

R. Mike Mullens, Elkins, VA, for defendant Ferlin Heavener, individually, and in his capacity as an employee of the Pendleton County Boad of Education.

Tamara J. DeFazio, Spilman, Thomas & Battle, Morgantown, WV, for defendant Calvin Thompson, individually, and in his capacity as Principal at Circlville School for the Pendleton County Board of Education.

P. Gregory Haddad, MacCorkle, Lavender, Casey & Sweeney, PLLC, Morgantown, WV, for defendant West Virginia Department of Health and Human Resources, a governmental agency.

Jeffrey D. Taylor, Rose, Padden & Petty, LC, Fairmont, WV, for defendant Children's Home Society of West Virginia.

MEMORANDUM OPINION & ORDER

KEELEY, District Judge.

Before the Court are a motion for summary judgment filed by the defendant, Calvin Thompson, and a motion for leave to amend the complaint filed by the plaintiff, Tony Arbaugh. The motions are fully briefed and ripe for review. The Court first GRANTS Arbaugh leave to amend his complaint because the amendment is not prejudicial, in bad faith, or futile. Finding issues of fact with respect to Thompson's liability under 42 U.S.C. § 1983 and state tort law, the Court DENIES summary judgment as to those claims. The Court GRANTS summary judgment, however, as to Arbaugh's cause of action under the West Virginia Human Rights Act and his claim for punitive damages under state law.

I. FACTS

The plaintiff, Tony Dean Arbaugh, Jr., initiated this civil action on July 20, 2001. His complaint enumerated various federal and state law claims against the Pendleton County Board of Education (the "Board"), the West Virginia Department of Health and Human Resources (the "DHHR"), the Children's Home Society of West Virginia, certain employees of those entities, and an individual named Ferlin Heavener. After the dismissal of several claims and parties, four defendants remain: the Board, the DHHR, Heavner, and Calvin Thompson, the former principal at Circleville School. Arbaugh sues these defendants for damages stemming from the repeated sexual abuse that he suffered from Heavener, Arbaugh's former grade school teacher.

Heavner was a school teacher in Pendleton County from 1985 to 1998. During this period, he sexually abused at least six school children. (White Dep. at 228.) He frequently used drugs with these children to facilitate his sexual advances. In 1999, Heavner pled guilty to twenty counts of third degree sexual assault and five counts of the delivery of a controlled substance. With respect to Arbaugh, however, Heavner only pled guilty to delivery of a controlled substance.

Calvin Thompson served as principal of Circleville School from the fall of 1988 until his retirement in the spring of 1994. Heavner taught at Circleville School during this entire period. In Thompson's first year as principal, school athletic director Charles Teter told Thompson that the janitor, Loye Nelson, saw Heavener in the school's hot tub with two or three boys.¹ (Thompson Dep. at 16-17.) According to Nelson, at least one of the boys, Jeremy Propst, was nude. (Nelson Dep. at 8.) Thompson recalls hearing that two of the boys were nude. (Thompson Dep. at 20.) The date of this incident is unclear: Thompson asserts that it occurred one or two years before he became principal, Nelson believes that it occurred while Thompson was principal, and Heavner indicates that it occurred between 1988 and 1990. In any event, no one ever spoke to Heavner about this incident. (Heavner Dep. at 152.) Moreover, Thompson apparently told no one about this incident until 1998, four years after his retirement.

On November 18, 1990, Heavner took two Circleville School students, Jeremy Propst and Charles Bennett, on a sightseeing trip to Canaan Valley, West Virginia. During the trip, Heavner gave alcoholic beverages to the boys. On the way home, the boys became belligerent and angered Heavner. Consequently, Heavner stopped his car and dropped off Propst and Bennett along the side of the road. Heavner drove away, but eventually returned to pick up the boys. When he did so, an altercation ensued between them, injuring Heavner. Heavner complained to the authorities, and a juvenile petition was filed against Propst and Bennett. Sergeant Gary White investigated the matter and ultimately charged Heavner with contributing to the delinquency of minors.

The petitions against Propst and Bennett were consolidated for a juvenile trial. Bennett's petition also included an allegation that he cut the tire of Thompson's vehicle — a matter unrelated to the altercation with Heavner. The juvenile trial was held in January, 1991.

At the juvenile trial, Thompson was called to testify about Propst and Bennett. Although witnesses were sequestered at the trial, Thompson was allowed to remain at counsel table because he was also a victim of Bennett's alleged tire cutting. Thus, Thompson observed the testimony of Sgt. White, who indicated that during the course of his investigation, he came upon reason to believe that Heavner had sexually abused Propst and Bennett.² (White Dep. at 20.) During his own trial testimony, however, Thompson made no mention of the alleged "hot tub incident" with Heavner and the boys. Nonetheless, Thompson later told Sergeant White that "he wished he would have been asked about the conduct of Ferlin Heavner when he was testifying." (Letter from White to Moomau of 2/5/91.) Thompson indicated that he would have testified that he and county schools superintendent Ron Whetzel had counseled Ferlin Heavner "on several occasions regarding his involvement with these `boys' at the school during evening hours [and] that he warned [Heavner] that this behavior was going to get him in trouble." (Id.)

On January 30, 1991, Heavner was convicted on two counts of contributing to the delinquency of a minor by the Magistrate Court of Pendleton County, West Virginia. Heavner appealed his conviction to the Circuit Court of Pendleton County, which acquitted him in May, 1991. Heavner now admits, however, that he gave alcohol to Propst and Bennett during the Canaan Valley trip and was guilty of the contributing charges.

Arbaugh entered Heavner's fourth grade class in September 1992. He subsequently failed fourth grade, which required him to repeat the grade and remain in Heavner's class for the next school year. During that two year period, Heavner often drove Arbaugh home from school. At some point, the two eventually began to use drugs and alcohol together after school hours. Heavner also sexually fondled Arbaugh in the classroom on two occasions. In the summer of 1994, after Arbaugh's "second" fourth grade year, Heavner initiated sexual intercourse with Arbaugh. In the following three years, Heavner and Arbaugh engaged in oral and anal sex numerous times.

In 1998, local law enforcement authorities launched a criminal investigation of Heavner's sexual abuse and drug activities. In the course of this investigation, Sergeant Steve Dawson questioned Thompson about his knowledge of Heavner's interaction with boys at the Circleville School. Thompson stated that, during his tenure as principal, "there were always rumors among the teachers that Ferlin was involved with young boys." (Thompson statement of 9/8/98, at 1.) When asked if he personally observed Heavner engage in possibly inappropriate behavior, he indicated that he "saw [Heavner] in his car with young boys after [school] hours and in Franklin with boys in his car," but not in the school building. (Id.) He also stated the following:

[In about 1993,] Doug Wimer came and told me he had caught Ferlin with a young boy at the cemetery 4-U Motel. Belvie Bennett also told me of an incident where Robert Propst came in from being outside with Ferin in his vehicle with his pants unfastened and drunk. Belvie told me point blank that Ferlin was having sex with the boys.

(Id. at 1-2.) Although Thompson subsequently qualified his police statement in his deposition, Sgt. Dawson stated that Thompson reviewed, affirmed, and signed the statement without changing it. (Dawson Dep. at 17.)

II. STANDARD OF LAW

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the court is required to draw reasonable inferences from the facts in a light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. 2505.

The moving party has the burden of initially showing the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its initial burden, the burden shifts to...