Does v. Covington County School Bd., Civ. A. No. 94-D-440-N.

• Decision Date: 10 March 1995
• Docket Number: Civ. A. No. 94-D-440-N.
• Citation: 884 F. Supp. 462
• Parties: JOHN DOES 1, 2, 3 and 4, Plaintiffs, v. The COVINGTON COUNTY SCHOOL BOARD, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

884 F. Supp. 462

JOHN DOES 1, 2, 3 and 4, Plaintiffs, v. The COVINGTON COUNTY SCHOOL BOARD, et al., Defendants.

Civ. A. No. 94-D-440-N.

United States District Court, M.D. Alabama, Northern Division.

March 10, 1995.

Stanley J. Murphy, Tuscaloosa, AL, Ray O. Noojin, Jr., Birmingham, AL, for plaintiffs.

Mark S. Boardman, Perry G. Carroll, Birmingham, AL, for defendants.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is the defendants' motion to dismiss filed May 9, 1994. On May 31, 1994, the defendants filed a brief in support of their motion to dismiss, to which the plaintiffs responded in opposition on June 13, 1994. After careful consideration of the arguments of counsel, the caselaw and the record as a whole, the court finds that the defendants' motion is due to be granted in part and denied in part.

JURISDICTION

The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1343 (civil rights jurisdiction) and 28 U.S.C. § 1331 (federal question jurisdiction). This court also has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over the plaintiffs' pendent state law claims. The parties do not contest personal jurisdiction or venue.

STANDARD OF REVIEW

When ruling on a motion to dismiss for failure to state a claim, the court must assume that the factual allegations in the complaint are true. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Fed.R.Civ.P. 12(b)(6). Assuming that the facts are true, a complaint may be dismissed under 12(b)(6) only "if it is clear that no relief could be granted" under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).

FACTS

Construing all the allegations of the complaint as true, the court finds the following facts controlling in this action:

Plaintiffs John Does 1, 2, 3 and 4 commenced this action on April 14, 1994, claiming that the defendants are liable for sexual abuse allegedly committed by a public school teacher. The named defendants are the Covington County School Board of Education (hereafter the "Board"); five members of the Board sued in their individual and official capacities; Terry Holley, sued in his individual and official capacity as principal of the W.S. Harlan Elementary School; and Dale Odom, sued in his individual and official capacity as superintendent of education for Covington County, Alabama.

The plaintiffs, who are males ranging from ages eight to eleven, attend or have attended the W.S. Harlan Elementary School in Lockhart, Alabama. The complaint alleges that a male third-grade teacher sexually harassed and abused the plaintiffs for periods of a year or more. The alleged abuse included acts of sodomy and took place in the classroom, on school outings, in school buses and at the teacher's home. The plaintiffs further contend that the Board, the principal and their agents had actual and constructive notice of the potential of the teacher in question to engage in inappropriate sexual behavior with male students and failed to the protect the plaintiffs from harm.

The plaintiffs further assert that neither the Board, the principal or any agents thereof investigated complaints made against the teacher nor took any measures to provide counseling for those students who had been abused. In addition, the plaintiffs allege that after public disclosure of the alleged incidents of sexual abuse, neither the Board, the principal or any agents thereof took action to determine if there were other victims of abuse among the current and former students of the elementary school.

Count I of the complaint asserts a violation of the Fourteenth Amendment of the United States Constitution, as enforced by 42 U.S.C. § 1983. Count II predicates liability under Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. §§ 1681, et seq. Count III alleges pendent state tort claims of sexual abuse and harassment, outrage, negligence¹, and sexual assault. The plaintiffs seek injunctive and monetary relief, as well as attorneys' fees and costs of court.

DISCUSSION

The defendants challenge the allegations in the complaint, asserting (1) that the plaintiffs have failed to state a claim under Title IX of the Education Amendments of 1972; (2) that the complaint is due to be dismissed for failure to identify the names of the plaintiffs; (3) that the complaint fails to state a claim under 42 U.S.C. § 1983 for an alleged deprivation of substantive due process rights guaranteed by the Fourteenth Amendment; (4) that even if the § 1983 claim is cognizable, the defendants are entitled to qualified immunity; (5) that the doctrine of sovereign immunity prohibits tort actions against state officials sued in their official capacities; (6) that the defendants are entitled to discretionary immunity as to the tort claims asserted against them; and (7) that the negligence claim is due to be dismissed on authority of W.L.O. v. Smith, 585 So.2d 22 (1991).

I. TITLE IX OF THE EDUCATION AMENDMENTS OF 1972

The defendants assert that the complaint fails to state a federal claim under Title IX because the plaintiffs have not "identified either the federal funds involved or a specific violation of law." Def.s' Mot. Dismiss at ¶ 1. Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. §§ 1681, et seq., prohibits sex discrimination by educational institutions receiving federal financial assistance. The defendants argue that coverage under Title IX is limited to alleged discrimination occurring within a specific program receiving federal assistance. Thus, for example, if the Board received federal aid but did not apply any of that money to its athletic program, then the athletic program would not be required to comply with Title IX.

Although the "program-specific" requirement at one time restricted the scope of Title IX coverage, see Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), where Congress expressly removed that requirement when it enacted the Civil Rights Restoration Act of 1987 (hereafter "Act"). The Act greatly expands the protections afforded by Title IX. Now, an educational institution receiving federal financial assistance faces Title IX sanctions if any program in the institution discriminates on the basis of sex, whether or not the offending program receives federal assistance.

To come within Title IX's reach, the institution must (1) be educational in nature, (2) receive federal financial assistance and (3) have engaged in discrimination on the basis of sex. Applying these elements to the instant case, the court finds that the plaintiffs have sufficiently pleaded each element: An elementary school is obviously educational in nature; the plaintiffs have stated that the "Board is a recipient of federal funds under a variety of assistance programs," see Pl.'s Compl. at ¶ 24; and the plaintiffs contend that a teacher sexually molested them. Accordingly, the court finds that the defendants' motion to dismiss the Title IX claim is due to be denied.

II. ANONYMITY OF PLAINTIFFS

The defendants also assert that the court should dismiss the complaint because it does not identify the names of the plaintiffs. Presumably this argument is based upon Rule 10(a) of the Federal Rules of Civil Procedure, which provides in part that "in the complaint the title of the action shall include the names of the parties." While the Rules do not provide for anonymous plaintiffs, courts in exceptional circumstances may permit plaintiffs to use fictitious names. See Doe v. Stegall, 653 F.2d 180 (5th Cir.1981)² (discussing factors for consideration by a court in deciding whether to permit party anonymity).³

In recognizing the vulnerability and tender age of each plaintiff, as well as the sensitive issues involved in the case, the court issued a stamped order on April 19, 1994, granting the plaintiffs' motion for leave to proceed without disclosure of names. Accordingly, the court finds that the defendants' motion to dismiss based on party anonymity is due to be denied.

III. § 1983 CLAIM BASED UPON THE FOURTEENTH AMENDMENT

The plaintiffs assert that the defendants' failure to prevent the alleged sexual abuse by the public school teacher "violated the rights of the plaintiffs to personal safety, security and privacy guaranteed by the Fourteenth Amendment," as enforced by 42 U.S.C. § 1983.⁴ Pl.s' Compl. at ¶ 18. The defendants, however, argue that the complaint fails to plead a violation of the Fourteenth Amendment and merely asserts a state law claim for assault and battery.

To maintain a § 1983 claim based upon a constitutional violation, the plaintiffs must allege (1) that the defendants acted "under color of state law" and (2) that the defendants' actions violated constitutionally-protected rights. 42 U.S.C. § 1983. The plaintiffs rely on the Court of Appeals for the Fifth Circuit's opinion in Doe v. Taylor Indep. School Dist., 15 F.3d 443, 452 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994), wherein the court held that school officials have a constitutional duty to protect students from harm. While the Eleventh Circuit has not been confronted with the same issue, the plaintiffs urge the court to adopt the reasoning in Taylor. There, a high-school teacher sexually molested a fifteen-year-old freshman student.⁵ When school officials failed to take action, the plaintiff brought suit under § 1983 against the teacher, the principal, the superintendent and the school district.

The plaintiff alleged that the defendants, while acting under color of state law, violated her substantive due process rights guaranteed by the Fourteenth Amendment. The court held that:

schoolchildren do have a liberty interest in their bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment and that physical sexual abuse by a school

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