DJ v. Sch. Bd. of Henrico Cnty.

• Decision Date: 18 September 2020
• Docket Number: Civil Action No. 3:19cv905
• Citation: 488 F.Supp.3d 307
• Parties: "DJ," a Minor, BY AND THROUGH His Next Friend, Robin HUGHES, et al., Plaintiffs, v. SCHOOL BOARD OF HENRICO COUNTY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

488 F.Supp.3d 307

"DJ," a Minor, BY AND THROUGH His Next Friend, Robin HUGHES, et al., Plaintiffs,

v.SCHOOL BOARD OF HENRICO COUNTY, et al., Defendants.

Civil Action No. 3:19cv905

United States District Court, E.D. Virginia, Richmond Division.

Signed September 18, 2020

Charlotte P. Hodges, Midlothian, VA, Daniel Guinnane Zemel, Mark J. Krudys, the Krudys Law Firm, PLC, Richmond, VA, for Plaintiffs.

Ryan Patrick Murphy, John David Gilbody, Henrico County Attorney's Office, Henrico, VA, Joseph Paul Rapisarda, Jr., Office of County Attorney, Richmond, VA, for Defendants School Board of Henrico County, Thomas McAuley.

John David Gilbody, Henrico County Attorney's Office, Henrico, VA, for Defendant Scott Bowers.

MEMORANDUM OPINION

M. Hannah Lauck, United States District Judge Plaintiff "DJ," a minor, brings this civil action by and through his Next Friend and Mother, Robin Hughes, and his Next Friend and Father, Quentin Johnson (together, "Plaintiffs"), against the Defendants School Board of Henrico County (the "School Board"), Thomas McAuley, Scott Bowers, and John Does 1–3 (collectively, "Defendants"). In the Amended Complaint, Plaintiffs bring seven causes of action. (Am. Compl. 12–23, ECF No. 7.) Defendants jointly moved to dismiss the Amended Complaint (the "Motion to Dismiss"), pursuant to Federal Rule of Civil Procedure 12(b)(6).¹ (ECF No. 13.) Plaintiffs responded in opposition, (ECF No. 15), and Defendants replied, (ECF No. 16).

These matters are ripe for adjudication. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331(a).² For the reasons that follow, the Court will grant in part and deny in part the Motion to Dismiss.

I. Factual and Procedural Background

Plaintiffs bring this civil rights action pursuant to 42 U.S.C. §§ 1983,³ 1988,⁴ and the Fourteenth Amendment⁵ to the United States Constitution. Plaintiffs assert that this Court has supplemental jurisdictions over their state law claims. As explained in more detail below, Plaintiffs raise seven claims in total, comprised of three claims against the School Board, and four claims against Bowers, three claims against McAuley, and two claims against John Does in their individual capacities.

A. Factual Background ⁶

Plaintiffs’ claims stem from an October 13, 2017 incident at Short Pump Middle School ("SPMS") located in Henrico County, Virginia, during which SPMS football players battered and assaulted Black teammates in the locker room, videotaped the incident, and posted it on social media. (Am. Compl. ¶¶ 25–35.) "DJ was a [twelve]-year-old seventh grader at SPMS and a member of the SPMS football team at the time that the October 13, 2017 incident giving rise to [the] Amended Complaint occurred." (Id. ¶ 16.) DJ "was considered ‘special needs’ and ... qualified for, and was being educated with, an Individualized Education Plan ... due to his severe attention deficit hyperactivity disorder

(ADHD)." (Id. ¶ 11.) At the time of the incident, McAuley "was the principal of SPMS."⁷ (Id. ¶ 13.) Also at this time, "Bowers was an employee of the School Board and the football coach for SPMS." (Id. ¶ 14.) "John Does 1-3 were assistants, employees, coaches, and/or other persons responsible for supervising the SPMS football team players in the boys’ locker room on October 13, 2017 ... acting within the course and scope of their employment and/or agency with [the] School Board." (Id. ¶ 15.) The School Board oversees SPMS, which receives federal funding. (Id. ¶¶ 12, 66, 77.)

1. On October 4 or 5, 2017, Defendants Became Aware of an Incident in the SPMS Locker Room Involving Bullying and Harassment of Black SPMS Football Players

Plaintiffs allege that "SPMS officials, including Defendant Bowers, Defendant McAuley, and other unknown SPMS administrators were made aware of a racial incident involving bullying and harassment of the African-American members of the SPMS football team by at least one white football player in the locker room following a game."⁸ (Id. ¶ 17.) "[O]n or about October 4, 2017, a white player used a racial slur and derogatory language," yelling, among other things, "you n-----s need to run faster!" (Id. ¶ 18.) Plaintiffs allege that these comments "were directed at DJ and two other African-American teammates." (Id. ) "This racially charged harassment and bullying led to a physical altercation in the locker room involving the white player and one of DJ's African-American teammates." (Id. (emphasis in original).) Plaintiffs aver that the altercation took place on SPMS school property "but no adult was present to supervise the middle school players in the locker room." (Id. ¶ 19.)

The next day, on October 5, 2017, Quentin Johnson, DJ's father, informed Bowers, the football coach, via email about the "incident in the locker room involving the racial slur, bullying, harassment, and the subsequent physical altercation." (Id. ¶ 20.) That same day, Bowers responded and "acknowledged that he had been made aware of the incident the night before." (Id. ¶ 22.) "In his October 5 email response, Defendant Bowers further advised Mr. Johnson that he (Bowers) had taken action and that ‘[b]eing that this happened on school grounds I have to involve the school.’ " (Id. ¶ 23.) Bowers informed Mr. Johnson "that a meeting had been set up with the SPMS administration, including the principal, about the matter." (Id. )

At a meeting involving SPMS administration, a decision was made that "SPMS football players were no longer allowed to be in the locker room without adult supervision." (Id. ¶ 24.) Plaintiffs allege that Bowers "told Mr. Johnson on the phone and in person that an administrator or a coach would be supervising the locker room at all times." (Id. ) "[E]ight days later, on October 13, 2017, the SPMS football players were once again left unsupervised after school in the boys’ locker room for a significant period of time." (Id. ¶ 25)

2. On October 13, 2017, Football Teammates Assault and Batter DJ in the Locker Room, Record the Incident, and Post it on Social Media

On October 13, 2017, Plaintiffs allege that non-African-American SPMS football players assaulted and battered DJ while in the locker room without adult supervision. (Id. ¶¶ 25–28.) At that time, "DJ was subject to the strictures of his adult supervisors, including that the players wear all equipment required to participate in tackle football." (Id. ¶ 25.) Because DJ had "to dress in/out of tackle football equipment before and after games and practice," Plaintiffs allege that "DJ and the two other African-American players [were] in a vulnerable position in the unsupervised boys’ locker room." (Id. )

"While changing their clothes and preparing for football practice, DJ and two other African-American males on the team were grabbed, forced down, and held against their wills by non-African-American players and subjected to demeaning and traumatizing simulated sex acts, bullying, harassment, racial slurs, ridiculing, and taunting." (Id. ¶ 27.) Plaintiffs state that "[i]n one instance, DJ was grabbed and forced to bend over a bench seat while a bigger, stronger, non-African-American player held him down with a forearm to his neck and simulated performing anal sex on him." (Id. ¶ 28.) "In another instance, DJ was forced over a bench while another non-African-American player simulated performing a sex act on him from behind." (Id. ¶ 29.)

DJ "struggled to be released but was overpowered by the other players," some of whom made insulting comments such as "hey [name], what's up with you and the blacks?; he's f--king a black kid." (Id. ¶¶ 30–31.) "DJ yelled and cried for the violent abuse to stop" but it did not. (Id. ¶ 31.) When released, "DJ put his school clothes back on and went to the study hall classroom where he knew there was an adult present, and where he felt he would be safe from the actions of his teammates." (Id. ¶ 32.) DJ did not return to the locker room to retrieve his other school items until everyone had left, "[n]or did he attend football practice that day." (Id. ¶ 33.)

Plaintiffs aver that "[t]he football players involved in the sexual battery and assault videotaped the incident and posted it on social media, adding subtitles and voiceovers that included, among other things, ‘There has [sic] been two cases of rape in the short pump boy's lockeroom [sic] today,’ ‘we gonna f*** the black outta [sic] these African children from Uganda ,’ ‘we f*** every black child in the lockeroom [sic],’ and asking ‘ever wonder what happens in the football locker room. ’ " (Id. ¶ 34 (emphases in original).) Plaintiffs claim that "[o]ne comment indicated that a boy forcibly simulating sex acts ‘did not have a boner’ during the battery, ‘so that means I ... don't actually have a thing for black people. ’ " (Id. (emphasis in original).) "Hundreds of people saw the video on social media, including ... the principal of a nearby school who contacted Defendant [McAuley, the principal of SPMS,] to alert him about the video." (Id. ¶ 35.)

3. After the October 13, 2017 Incident, DJ Suffers Harassment, Experiences Psychological Problems, and Transfers Schools

After the October 13, 2017 incident, students who committed the acts against DJ and other SPMS students who had seen the video "taunted, teased, and humiliated [DJ] about being ‘raped’ in the locker room." (Id. ¶ 36.) Plaintiffs allege that "Defendant Bowers[, the football coach,] sought to minimize and/or dismiss the attacks as ‘foolishness’ and a ‘joke.’ " (Id. ¶ 37.) "Administrators at SPMS spoke to ... the football team about the incident on Monday, October 16, 2017 ... [and told the boys] not to tell anyone about the assault that had taken place that Friday." (Id. ¶ 38.)

DJ continued to suffer harassment from other students that "occurred in the halls of SPMS with regularity." (Id. ¶ 39.) Following...