Bosley v. Kearney R-1 School Dist.

• Decision Date: 19 October 1995
• Docket Number: No. 93-0759-CV-W-9.,93-0759-CV-W-9.
• Citation: 904 F. Supp. 1006
• Parties: Jennifer BOSLEY, et al., Plaintiffs, v. KEARNEY R-1 SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Western District of Missouri

904 F. Supp. 1006

Jennifer BOSLEY, et al., Plaintiffs, v. KEARNEY R-1 SCHOOL DISTRICT, Defendant.

No. 93-0759-CV-W-9.

United States District Court, W.D. Missouri, Western Division.

October 19, 1995.

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Steve A. Matalone, II, Matalone & O'Connor, Christopher R. Williams, Kansas City, MO, for plaintiffs.

Robert L. Jackstadt, Peter Ruger, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, MO, William E. Shull, William Adkins Law Firm, Liberty, MO, for Kearney R-1 School Dist.

Paul L. Wickens, Morrison & Hecker, Kansas City, MO, Donald L. Logerwell, Garvey, Schubert & Barer, Seattle, WA, for Richard Logerwell.

ORDER AMENDING MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON COUNTS I (42 U.S.C. § 1983), III (NEGLIGENCE), IV (SPECIAL RELATIONSHIP), V (LOSS OF SERVICES) AND VI (LOSS OF CONSORTIUM); GRANTING THE DEFENDANT'S MOTION TO DISMISS COUNT VII (SLANDER); AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON COUNT II (20 U.S.C. § 1681)

BARTLETT, Chief Judge.

Due to some computer file errors, portions of the October 4, 1995, opinion were omitted, and others were included which should have been left out. Therefore, the previous order is withdrawn and this order substituted for it.

I. Introduction

This is an action brought under 42 U.S.C. § 1983 and 20 U.S.C. § 1681 which includes certain pendent state law claims, all stemming from alleged instances of sexual harassment of the young plaintiff in the spring of 1992. Defendant Kearney R-1 School district moves to dismiss or, alternatively, for summary judgment.

Plaintiff requests oral argument on the motion. Counsel for both parties have fully briefed their arguments so it is not necessary to hold oral arguments.

A. Background

Plaintiffs' original Complaint named Kearney R-1 School District as the sole defendant. Later, plaintiffs were granted leave to add Superintendent Richard Logerwell as a second named defendant. Defendant Kearney R-1 School District moved seeking termination of the action against it. Subsequent to the filing of that motion, all claims against defendant Richard Logerwell individually were dismissed. Therefore, this order addresses only the claims against the school district.

Mother and daughter, the plaintiffs in this action, are both named Jennifer Bosley. Hereinafter, the mother will be referred to as Mrs. Bosley, and the daughter as Jennifer Bosley.

Plaintiff Jennifer Bosley contends in Count I of her Second Amended Complaint that defendant Kearney R-1 School District violated Jennifer's constitutional rights of privacy, substantive due process, equal protection and other rights secured by the Constitution of the United States in that:

1) defendant and defendant's agents acted under color of state law;

2) defendant and defendant's agents knew of but failed to adequately investigate or act upon plaintiffs' repeated complaints of sexual harassment of Jennifer Bosley by her fellow students;

3) defendant and defendant's agents had the ability to control and limit this inappropriate conduct of the students in their charge but failed to do so; and

4) the conduct of defendant and defendant's agents constituted a continuing, wide-spread, and consistent pattern of unconstitutional conduct motivated by malice, by a reckless or a deliberate indifference to the rights of the plaintiff, or by a tacit authorization by the defendant of the conduct of the offending students and agents of the defendant.

In Count II, both plaintiffs assert a claim under 20 U.S.C. § 1681 in which they allege that defendant and defendant's agents 1) failed to fulfill their duty to stop inappropriate sexual harassment of female students and discrimination of students based on sex; and 2) thereby intentionally discriminated against Jennifer, causing her to be excluded from, and denying her the benefits of, the defendant's federally funded educational program.

Plaintiffs assert in Count III a state claim sounding in negligence. They allege that defendant breached various duties: to protect students from sexual harassment, to report this inappropriate behavior to appropriate authorities, to supervise agents and students, to investigate rumors and complaints of alleged sexual harassment, to adopt customs and practices or rules and regulations to prevent sexual harassment, to follow clearly established rules to prevent harm, and to prevent tortious, intentional and criminal acts of third parties of which the defendant had notice.

In Count IV, plaintiffs assert that the conduct of the defendant and defendant's agents constituted a breach of the duties arising from their special school/student relationship to Jennifer. Specifically, plaintiffs allege that the defendant had the duty of protecting Jennifer and providing her a place of safety.

Mrs. Bosley asserts in Counts V, VI and VII, respectively, claims for loss of services and medical expenses, for loss of consortium, and for slander.

Defendant moves for judgment on the pleadings as to all counts for failure to state a claim upon which relief can be granted and/or for summary judgment as a matter of law. Defendant supplied correspondence and other materials in support of its motion, and plaintiffs supported their response with affidavits and other materials. Therefore, in accord with Rule 12(c), Federal Rules of Civil Procedure, I will treat this as a motion for summary judgment under Rule 56, Federal Rules of Civil Procedure.

Defendant argues that the school district is entitled to judgment as a matter of law on Count I (§ 1983) because no constitutional or federal duty to the plaintiff was breached by the defendant. As to Count II (20 U.S.C. § 1681), defendant maintains there is no evidence the defendant acted intentionally or that defendant had a formal policy of unlawful discrimination. Further, defendant argues that Mrs. Bosley, a non-student, cannot bring a claim under 20 U.S.C. § 1681.

As to the state law claims, defendant contends these are pendant claims which must be dismissed due to lack of subject matter jurisdiction, or on the ground they are barred by sovereign immunity, or that plaintiff failed to produce evidence sufficient to create a genuine issue of material fact.

II. Standard for Summary Judgment

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered 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." In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Inland Oil and Transport Co. v. United States, 600 F.2d 725, 727-28 (8th Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).

If there is no genuine issue about any material fact, summary judgment is proper because it avoids needless and costly litigation and promotes judicial efficiency. Roberts v. Browning, 610 F.2d 528, 531 (8th Cir.1979); United States v. Porter, 581 F.2d 698, 703 (8th Cir.1978). The summary judgment procedure is not a "disfavored procedural shortcut." Rather, it is "an integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986); see also City of Mt. Pleasant v. Associated Electric Cooperative, Inc., 838 F.2d 268, 273 (8th Cir.1988). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

The moving party bears the initial burden of demonstrating by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. However, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. (emphasis added).

The nonmoving party is then required to go beyond the pleadings and by affidavits, depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id. A party opposing a properly supported motion for summary judgment cannot simply rest on allegations and denials in his pleading to get to a jury without any significant probative evidence tending to support the complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The evidence favoring the nonmoving party must be more than "merely colorable." Id. 477 U.S. at 249, 106 S.Ct. at 2511. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (footnote omitted).

The inquiry to be made mirrors the standard for a directed verdict: whether the evidence presented by the party with the onus of proof is sufficient that a jury could properly proceed to return a verdict for that party. Anderson v. Liberty Lobby, 477 U.S. at 251, 106 S.Ct. at 2511. Essentially, the question in ruling on a motion for summary...