Ex rel. Counts G.C. v. North Clackamas School Dist.

• Court: U.S. District Court — District of Oregon
• Writing for the Court: Mosman
• Citation: Ex rel. Counts G.C. v. North Clackamas School Dist., 654 F.Supp.2d 1226 (D. Or. 2009)
• Decision Date: 21 August 2009
• Docket Number: No. CV 07-686-HU.,CV 07-686-HU.
• Parties: G.C., an incapacitated person by and through her duly appointed conservator, Kenneth E. COUNTS, Plaintiff, v. NORTH CLACKAMAS SCHOOL DISTRICT, a political subdivision of the state of Oregon, Ron Naso, Jan Miner, and Angela Tucker, Defendants.

654 F.Supp.2d 1226

G.C., an incapacitated person by and through her duly appointed conservator, Kenneth E. COUNTS, Plaintiff, v. NORTH CLACKAMAS SCHOOL DISTRICT, a political subdivision of the state of Oregon, Ron Naso, Jan Miner, and Angela Tucker, Defendants.

No. CV 07-686-HU.

United States District Court, D. Oregon.

August 21, 2009.

COPYRIGHT MATERIAL OMITTED

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Peggy S. Foraker, Portland, OR, for Plaintiff.

J. Channing Bennett, Garrett Hemann Robertson P.C., Salem, OR, for Defendants.

OPINION AND ORDER

MOSMAN, District Judge.

On February 5, 2009, and June 25, 2009, Magistrate Judge Hubel issued Findings and Recommendations ("F & Rs") (## 49, 59) in the above-captioned case recommending that I GRANT defendants' Motion for Partial Summary Judgment (# 24) as to the individual defendants on the Title IX claim, DENY summary judgment as to defendant District on the Title IX claim, and GRANT summary judgment as to the section 1983 claims as to all defendants. Plaintiff (# 65) and defendants (# 60) filed Objections to the F & Rs.

DISCUSSION

The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F & R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). While the level of scrutiny under which I am required to review the F & R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any of the magistrate judge's F & R. 28 U.S.C. § 636(b)(1)(C).

Upon review, I agree with Judge Hubel's recommendations, and I ADOPT the F & Rs (## 49, 59) as my own opinions.

IT IS SO ORDERED.

FINDINGS & RECOMMENDATION/ORDER

DENNIS JAMES HUBEL, United States Magistrate Judge.

GC is an incapacitated minor who is represented through her duly appointed conservator Kenneth Counts. She brings this action against the North Clackamas School District ("the District"), District Superintendent Ron Naso, Principal Jan Miner, and special education teacher Angela Tucker.

Plaintiff generally contends that following an alleged sexual assault or rape by a male developmentally disabled student against a female developmentally disabled student in the fall of 2004, the District failed to take adequate measures to prevent an alleged subsequent assault or assaults by the same male developmentally disabled student against plaintiff in the spring of 2005. Specifically, plaintiff brings a claim of negligence against the District, a claim under Title IX against the District and all three individual defendants, and a claim under 42 U.S.C. § 1983 against the District, Naso, and Miner.

Defendants move for summary judgment against the Title IX and section 1983 claims. The motion does not address the negligence claim. Defendants also move to strike several paragraphs of Counts's Declaration.

I recommend that defendants' motion be granted in part and denied in part. I deny the motion to strike as moot.

BACKGROUND

Plaintiff is developmentally disabled, has a low IQ, and suffers from behavioral issues. In the 2004-05 school year, she was a student at Clackamas High School, and pursuant to her individualized education plan (IEP), she was placed primarily in the "life skills class" taught by Tucker and four instructional assistants. The life skills class was also the primary program for developmentally disabled students KW and AY.

AY is mentally disabled and autistic. KW, AY, and plaintiff had a history of flirting in violation of the life skills class rules. There may have been a history of kissing between KW and AY.

Sometime between October 12, 2004, and October 15, 2004, KW's mother contacted the school to report a sexual incident between KW and AY, which was alleged to have occurred on October 11, 2004. The mother spoke to Tucker by phone and reported that KW had been inappropriately touched by AY. She reported that the incident occurred "during recycling." Assistant Principal Mark Pinder states that KW's mother reported that some kind of sexual contact occurred. He does not recall if KW's mother used the term rape.

The police conducted an investigation into the allegations made by KW's mother. The police informed the District that they were unable to determine what, if anything, had occurred. The police concluded that even if KW and AY had engaged in sex, AY could not form the criminal intent necessary to be charged with a crime.

The District also investigated the allegations and was unable to substantiate them. Pinder states that the investigation was exhaustive and included interviews of both families and students, and also involved District Risk Manager Gary Richter. Pinder found no evidence that AY had engaged in any kind of sexual touching or contact with KW or any other girl. The District found no evidence that the incident had occurred.

In addition to Pinder's testimony, Richter stated that he interviewed every single staff member who could have had any possible knowledge of the incident, he looked at the time frame, and the general circumstances, and nothing fit. The District concluded that this "KW event" did not take place.

Tucker stated that she was concerned that KW was not a credible reporter because she did not tell the truth. She also noted that although at some point Pinder had mentioned rape, KW's mother had said something different to Tucker. To Tucker, this showed an inconsistency because "[i]t went from one level to the next level." Tucker Depo. at p. 41. She admits that she did not consider that KW's mother had talked further with KW. At some point, Tucker concluded that KW was lying. Id. at p. 49. Miner personally "believed [KW] was not telling a factual truth[.]" Miner Depo. at p. 4.

Plaintiff was one alleged witness to the KW incident. At the time of her initial interview with Miner and Pinder, she stated that she saw a boy leaving the bathroom while KW was buttoning her blouse. Miner Depo. at pp. 9-10. Later, plaintiff stated that the boy was AY. Richter Depo. at p. 56. The District agrees that during its investigation, it learned that plaintiff contended that she saw KW buttoning her blouse and crying, and that the boy she saw leaving the bathroom was AY.

Even though the District could not substantiate the KW allegation against AY, it explored the possibility of removing AY from the program. School psychologist Cynthia Panko explained that "after KW," there was a discussion of how to "move forward" with both students. Panko Depo. at pp. 24-25. One option was to split the students and move them to different schools. Id. Panko met with AY's foster mother and case worker to explore moving him to another school within the District. Id. The case worker expressed concern about moving a student to a more restrictive environment. Id. at p. 25. Panko explained that without "collaborating evidence" of what "had happened," the District did not have an option to move AY to a more restrictive environment. Id. According to Panko, while a parent may opt for this, it cannot be done at the District's insistence absent more evidence that the incident occurred. See id.¹

The District performed functional behavioral assessments of KW, AY, and plaintiff. In a document entitled "Functional Behavioral Assessment Behavior Support Plan (F-BSP) Protocol," dated October 19, 2004, Panko noted, in a section apparently recording information obtained from an interview with a teacher, staff, or parent, that AY thinks he has a girlfriend with whom he hugs and kisses, believing it to be appropriate. Pltf's Exh. 19 at p. 1. Panko noted that in an unstructured setting, the likelihood of sexual advances by AY with his girlfriend, was a "3" or a "4" on a low to high scale of 1 to 6. Id.

In the actual Functional Behavioral Assessment, Panko noted, in a section for "Triggering Antecedents," that AY believed that KW was his girlfriend and that he is likely to engage in flirtatious or sexual behavior in the presence of girls he finds attractive and when he has less supervision, such as "passing time," riding the school bus, and during unstructured times. Pltf's Exh. 6. Panko further stated that AY could benefit from instruction on the difference between a friend and a girlfriend, and the difference between appropriate sexual behavior for his age and development and inappropriate sexual behavior. Id.

The District did offer KW the opportunity to change schools. Pltf's Exh. 22. KW did not return to Tucker's classroom. Apparently, at some point, the family moved out of the District.

The District developed a plan to place AY under a high level of supervision which mandated that he would be under "line of sight" supervision at all times. Richter testified that after the information was presented to the District about KW's allegations, it immediately put AY on "very constant supervision." Richter Depo. at p. 37. Even before the supervision plan was adopted, Tucker had instructed her class that any kind of touching was inappropriate in her class. Tucker Depo. at p. 50. In her classroom, there was no hand holding, no hugging, no "side" hugging, no kissing, and no calling each other pet names. Id. at p. 51.

Tucker testified that the plan adopted for AY in light of the KW event required that AY be with a paid adult, staff member from the time he arrived at school until the time he left. Tucker Depo. at p. 55. Thus,...