Doe v. Faerber

• Decision Date: 14 August 2006
• Docket Number: No. 205CV142FTM99DNF.,205CV142FTM99DNF.
• Citation: 446 F.Supp.2d 1311
• Parties: John DOE, Plaintiff, v. Karl G. FAERBER, as Personal Representative of The Estate of Nelson A. Faerber, Jr., Catherine C. Faerber, School Board of Collier County, Florida, Faerber & Cliff, Faerber, Hissam, Cliff & Perez-Benitoa, Ross, Lanier, Deifik & Cliff, P.A. formerly known as Faerber, Lanier, Deifik, Cliff & Ross, P.A., Defendants.
• Court: U.S. District Court — Middle District of Florida

446 F.Supp.2d 1311

John DOE, Plaintiff, v. Karl G. FAERBER, as Personal Representative of The Estate of Nelson A. Faerber, Jr., Catherine C. Faerber, School Board of Collier County, Florida, Faerber & Cliff, Faerber, Hissam, Cliff & Perez-Benitoa, Ross, Lanier, Deifik & Cliff, P.A. formerly known as Faerber, Lanier, Deifik, Cliff & Ross, P.A., Defendants.

No. 205CV142FTM99DNF.

United States District Court, M.D. Florida, Fort Myers Division.

August 14, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jeffrey M, Herman, Stuart M. Mermelstein and Adam D. Horowitz of Herman & Mermelstein, P.A., Miami, FL, for John Doe.

Theodore Zelman of Zelmon & Hanlon, P.A., Naples, FL, for Karl G. Faerber, as Personal Representative of the Estate of Nelson A. Faerber, Jr.

Kenneth M. Oliver of Kubicki Draper, Fort Myers, FL, for Catherine Faerber.

Susan J. Cole of Bice Cole Law Firm, Miami, FL, for The School Board of Collier County.

Lynn E. Dailey of George, Hartz, Lundeen, et al., Fort Myers, FL, for Faerber & Cliff and Faerber, Hissam, Cliff & Perez-B enitoa.

OPINION AND ORDER

STEELE, District Judge.

This matter comes before the Court on various motions to dismiss filed by all defendants. (Doc. # 93, 94, 104, 108.) Plaintiff filed a response to each of the motions. (Docs.# 96, 103, 104, 109.) Defendant School Board of Collier County also filed a request for oral argument. (Doc. # 95.) Finding that the parties have fully briefed the issues, the Court concludes that oral argument is not necessary.

I.

In deciding a motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir. 2001) (en banc). To satisfy the pleading requirements of Fed.R.Civ.P. 8, a complaint simply must give the defendants fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewiez v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). However, dismissal is warranted under Fed. R.Civ.P. 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir.1992). The Court need not accept unsupported conclusions of law or of mixed law and fact in a complaint. Marsh, 268 F.3d at 1036 n. 16.

II.

In the Second Amended Complaint, plaintiff alleges that in or about 1997 he was approximately twelve years old and attended the Pine Ridge Middle School in Collier County. At that time, Nelson A. Faerber, Jr. ("Faerber") was a member of the defendant School Board of Collier County (the "School Board") and a prominent attorney in the community. The Second Amended Complaint alleges that Faerber sexually assaulted plaintiff on numerous occasions and in numerous locations between 1997 and 2003. Faerber repeatedly removed plaintiff from school premises during the school day for this purpose. Plaintiff claims that the sexual assaults took place at Faerber's home, law office, and other locations. Nine counts are alleged in the Second Amended Complaint: (1) A sexual assault claim against the Faerber estate¹ (Count I); (2) two 42 U.S.C. § 1983 claims against the School Board (Counts II and III); (3) a 20 U.S.C. § 1681 (Title IX) claim against the School Board (Count IV); (4) a breach of fiduciary or special duty claim against Catherine Faerber (Mrs. Faerber), Faerber's wife, (Count V); (5) a negligence claim against Mrs. Faerber (Count VI); (6) a negligence claim against Faerber's former law firms² (the "Law Firms") (Counts VII and VIII); and (7) a negligence claim against the School Board (Count IX).

III.

A. School Board's Motion to Dismiss (Doc. # 93)

The School Board contends that the Second Amended Complaint fails to state a claim in any of the counts relating to it. For the reasons set forth below, the Court disagrees.

(1) Counts II and III (Section 1983):

Plaintiff alleges that the School Board is liable for the sexual assaults by Faerber. Plaintiff asserts, pursuant to 42 U.S.C. § 1983, that his constitutional right to bodily integrity was violated as the result of the School Board's policies, practices, and customs of enabling and fostering sex abuse and of implementing deficient training practices. (Doc. # 92, pp. 8-11.)

The School Board contends that plaintiff's "allegations fall well short of alleging that a policy, practice and custom of enabling and fostering sex abuse was settled, permanent, persistent or widespread." (Doc. # 93, p. 7 (internal quotation marks omitted).) The School Board further claims that plaintiffs "vague allegation that School Board failed to properly train its employees does not identify an official policy or custom ... which caused the alleged constitutional violation." (Id. at 7-8.)

Title 42 U.S.C. § 1983 imposes liability on any person who, under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." To establish a claim under 42 U.S.C. § 1983, plaintiff must allege and ultimately prove that (1) defendant deprived him of a right secured under the United States Constitution or federal law, and (2) such deprivation occurred under color of state law. Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir.1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir.), reh'g and reh'g en banc denied, 277 F.3d 1381 (11th Cir.2001). In addition, plaintiff must allege and establish an affirmative causal connection between the defendants' conduct and the constitutional deprivation. Troupe v. Sarasota County, Florida, 419 F.3d 1160, 1165 (11th Cir.2005); Marsh, 268 F.3d at 1059.

Under § 1983, governmental entities may not be held liable under a theory of respondeat superior, but instead may only be held liable for the execution of a governmental policy or custom. Quinn v. Monroe County, 330 F.3d 1320, 1325 (11th Cir.2003)(citing Monell v. Dep't of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Plaintiff must identify the municipal policy or custom which caused his injury, Davis v. DeKalb County School Dist., 233 F.3d 1367, 1375 (11th Cir.2000), and must allege that the policy or custom was the moving force of the constitutional violation. Cuesta v. School Bd. of Miami-Dade County, Fla., 285 F.3d 962, 967 (11th Cir.2002). See also Board of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998). "A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the [entity] .... A custom is a practice that is so settled and permanent that it takes on the force of law." Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir.2005)(quoting Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.1997)). "Even in the absence of an express policy or custom, a local government body can be held liable `for a single act or decision of a municipal official with final policymaking authority in the area of the act or decision.'" Cuesta v. School Bd. of Miami-Dade County, Fla., 285 F.3d 962, 968 (11th Cir.2002)(quoting McMillian v. Johnson, 88 F.3d 1573, 1577 (11th Cir.1996)).

Additionally, there are "limited circumstances" in which a failure to train or supervise can be the basis for liability under § 1983. See City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). These "limited circumstances" occur only where (1) the government entity inadequately trains or supervises its employees, (2) this failure to adequately train or supervise is the policy of the government entity, and (3) the policy causes its employees to violate a citizen's constitutional rights. Id. at 389-91, 109 S.Ct. 1197; see also Gold, 151 F.3d at 1350; Kerr v. City of West Palm Beach, 875 F.2d 1546, 1555 (11th Cir.1989).

Applying these principles, the Court finds that plaintiff has sufficiently stated § 1983 claims against the School Board. The Second Amended Complaint alleges that the School Board "had a longstanding practice and custom to avoid and ignore complaints and incidents of sexual abuse of children, particularly when such abuse is perpetrated with power and influence in the School Board[,]" (Doc. # 92, ¶ 39); that "[t]his policy, practice and custom fostered an environment which facilitated and enabled sexual abuse of students through the removal of students from school during the school day when they should have been within the safety of the chool premises[,]" (id., ¶ 43); and that "[t]he Members of the School Board and the Superintendent were the final policy makers for the School Board's policy, practice and custom to take no action to protect students in the school system from sexual abuse[,]" (id., ¶ 44). The Second Amended Complaint further alleges that "[t]he School Board failed to adequately train its personnel in the prevention of sexual abuse, identification of potential sex abusers, or investigation and inquiry of persons who wish to remove a student from the classroom[,]" (id. ¶ 49); that the inadequate training practices was the School Board's policy, (id. ¶ 41(a)); and that plaintiff was repeatedly sexually abused as a result of the School Board's policy, practice, and custom (id., ¶ 45), and consequently plaintiff suffered damages (id.). These allegations, coupled with the factual allegations in the Second Amended Complaint...