Doe v. City of Roseville

• Decision Date: 16 July 2002
• Docket Number: No. 01-1385.,01-1385.
• Citation: 296 F.3d 431
• Parties: Sally DOE, as Next Friend of Jane Doe, a minor, Plaintiff-Appellee, v. CITY OF ROSEVILLE, Roseville Community Schools; John Kment; Frank Mayer; Betty Slinde; Leroy Herron; Dorothea Sue Silavs, in their individual and official capacities, jointly and severally, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

296 F.3d 431

Sally DOE, as Next Friend of Jane Doe, a minor, Plaintiff-Appellee, v. CITY OF ROSEVILLE, Roseville Community Schools; John Kment; Frank Mayer; Betty Slinde; Leroy Herron; Dorothea Sue Silavs, in their individual and official capacities, jointly and severally, Defendants-Appellants.

No. 01-1385.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2001.

Decided and Filed: July 16, 2002.

Rehearing and Suggestion for Rehearing En Banc Denied: September 19, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas W. Stephens (argued and briefed), Goodman, Lister, Seikaly & Peters, Detroit, MI, Julie H. Hurwitz (briefed), Detroit, MI, for Plaintiff-Appellee.

Daniel J. Kelly (argued and briefed), Cox, Hodgman & Giarmarco, Troy, MI, for Defendants-Appellants.

Before SILER and BATCHELDER, Circuit Judges; HOOD, District Judge.^*

OPINION

BATCHELDER, Circuit Judge.

Defendants Betty Slinde, Frank Mayer, Leroy Herron, John Kment and Dorothea Sue Silavs, appeal the district court's order denying them summary judgment on qualified immunity grounds on the claims against them in their individual capacities under 42 U.S.C. § 1983. Those claims allege that these individual defendants deprived Jane Doe, a minor, of her constitutional right to be free from sexual abuse at the hands of a public school teacher. Because we conclude that, as to these individual defendants, Jane has not alleged the violation of an actual constitutional right, we will reverse the district court's judgment.

PROCEDURAL HISTORY

In 1999, the plaintiff, Sally Doe ("Sally"), as Next Friend of Jane Doe ("Jane"), a minor, filed this action on behalf of Jane against the Roseville Community Schools and a number of individuals in both their official and individual capacities, raising claims under 42 U.S.C. § 1983, Title IX, 20 U.S.C. § 1681(a), and various state laws for the alleged sexual abuse of Jane during 1992 and 1993. The defendants include Betty Slinde, who retired in 1986 from her position as principal of Fountain Elementary School in the Roseville School District; Frank Mayer, who retired from his position as Superintendent of the Roseville Schools sometime after 1988 and before 1992; Leroy Herron, former Assistant Superintendent of Roseville Community Schools who retired after 1988 but before 1992; Dorothea Sue Silavs, Roseville's Director of Special Education at the time of the alleged sexual abuse; John Kment, Superintendent of Roseville Community Schools during the alleged abuse; and John Lomnicki, Jane Doe's Chapter I reading teacher.

As we understand the complaint, Jane claims that defendant Lomnicki had a history of sexually molesting his students, and that school officials both failed to take action against Lomnicki and attempted to cover-up his history; that Lomnicki sexually molested Jane during 1992 and 1993; and that the defendants' actions and failures to act violated Jane's constitutional and statutory rights.

After extensive discovery had been conducted, the defendants — other than Lomnicki — moved for summary judgment on the § 1983 and Title IX claims.¹ The district court heard oral argument and denied the motion. Before us on appeal is the district court's denial of summary judgment on qualified immunity grounds to defendants Slinde, Mayer, Herron, Silavs and Kment.

STATEMENT OF FACTS

Lomnicki was hired as a Fountain Elementary School teacher by Roseville Community Schools in 1960. Although there is evidence that Lomnicki repeatedly molested a young male student in the mid-sixties, the Appellee does not claim that the school district was ever made aware of this conduct. The misconduct material to this appeal began in the mid-seventies.

Beginning with the 1975-76 school year, several fourth- and fifth-grade girls complained that Lomnicki had touched their legs when they were wearing dresses and put his hand down the back of their pants and up their dresses. According to one of the girls, when her father discussed the situation with then-principal Slinde, Slinde told him that "she did not see how it could be possible." Slinde testified that she spoke with Lomnicki and warned him to be very careful not to touch any children inappropriately, but she did not follow up with that particular parent, she did not document the incident or report it to anyone, and on her retirement, she destroyed all of her files, including any contemporaneous notes she might have made regarding this incident.

The following year, several fourth-grade girls alleged that Lomnicki had put his hands up their shirts and dresses, touched their buttocks, rubbed their backs, and made them sit on his lap during school in front of other children. One of these girls testified that Slinde had questioned each of them and told them that "she didn't want to hear anymore talk about it [Lomnicki's touching] and that [they] weren't to talk about it to anyone, not to tell [their] parents and if [they] continued to talk about it, then Mr. Lomnicki would get in a lot of trouble, go to jail and die there."

Other incidents involved two fifth-grade girls, one of whom was in a classroom alone when Lomnicki came in behind her, put pieces of candy in her mouth and in each of her hands and then pulled her shirt tight and made comments about how her breasts had grown. The second girl alleged that Lomnicki had on several occasions grabbed the inside part of her leg, stuck his hand down her top all the way to her pants and rubbed her vaginal area, and picked her up by the waist, spit the gum he had been chewing into her mouth, and stuck his tongue into her mouth to obtain her gum. It does not appear from the statements and testimony of these two girls that they reported these incidents to anyone. It is undisputed, however, that Slinde did not relay the complaints that were reported to her to anyone in the administration of the school district, nor did she discipline Lomnicki in any way.

Sometime after these incidents, Lomnicki was transferred to Kaiser Elementary School, but the school was not notified of the verbal warning given to him by Slinde. In 1979, Superintendent Mayer was advised that Lomnicki had fondled the breasts of four sixth-grade girls. Mayer investigated the matter and concluded that Lomnicki exercised "poor judgment." Mayer placed a written reprimand — in a sealed envelope — in Lomnicki's personnel file admonishing him and reminding him that "you are not to straighten clothing or pick up jewelry from beneath a sweater or blouse or to touch students in a way which could be misinterpreted by them or their parents." Lomnicki was warned that "[f]uture instances of poor judgment on your part may result in more severe disciplinary action up to and including discharge."

Following this incident, Lomnicki was transferred to Arbor Elementary School, where he was assigned to a federally funded remedial reading program ("Chapter I"), in which he taught individual students, one at a time, in a private classroom. The officials at this school were not told of either the warning by Slinde or the written reprimand from Mayer. There were no reported incidents at Arbor Elementary School until nine years later when, in 1988, several sixth-grade girls reported to the school's principal that Lomnicki had been hugging them in front of other students, giving them back rubs, placing his hands in their pockets, and forcibly holding their hands between his. The principal reported the allegations to Assistant Superintendent Leroy Herron and Superintendent Mayer. Herron investigated the matter and placed a written reprimand — again in a sealed envelope — in Lomnicki's file, classifying the incident as "poor judgment" and warning Lomnicki that he was not to hug or put his hands on students in a manner that may be misconstrued by the students or their parents. Because some of the girls were giggling when Herron confronted them and did not give concrete answers to his questions, and because Lomnicki had plausible explanations for all of his conduct, Herron did not think that there was enough evidence for this incident to be considered child abuse. He did acknowledge that this was Lomnicki's second warning and recommended that in the future, Lomnicki "should not attempt to straighten out sweaters or blouses of [his] students."

Superintendent Mayer sent a confidential memo to the school board members and the school district's attorney informing them of Lomnicki's reprimand and the 1979 incident. He advised that Herron had met with Lomnicki, and that Mayer would notify the Macomb County Child Abuse Office, place a reprimand in Lomnicki's file, and immediately transfer Lomnicki. Lomnicki was indeed transferred — to Eastland Elementary School — but again, school officials were not informed of Lomnicki's history. Again, Lomnicki was assigned to the Chapter I program.

Jane, born in 1987, encountered Lomnicki when she entered kindergarten at Eastland in 1992, and began receiving individualized reading instruction from him. Jane claims that on at least five separate occasions, Lomnicki sexually abused her. According to Jane, Lomnicki had a mask, a rope and a small wooden bat on each of those occasions. The abuse included Lomnicki's removing her clothing; touching her private parts with his hands and penetrating her vagina with his fingers; taking her into the boys' bathroom and, while wearing the mask, tying her wrists with rope, gagging her, hanging her from a hook on the door and hitting her with a small wooden bat; and — this time in the library — while again wearing a mask, putting his finger in her vagina and slapping her in the face. Jane claims that none of this abuse left any marks or bruises on her body, and that she did not tell anyone about these incidents because Lomnicki threatened to kill her if she did. Jane was unable to provide even approximate dates for any of the alleged incidents of abuse, and specifically, there is no evidence from any source that Lomnicki abused...