Franks v. Kentucky School for the Deaf, Civil Action No. 96-220.

• Decision Date: 27 December 1996
• Docket Number: Civil Action No. 96-220.
• Citation: 956 F.Supp. 741
• Parties: Holly FRANKS, as next friend of H.B.L., a minor, Plaintiff, v. The KENTUCKY SCHOOL FOR THE DEAF, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

Page 741

956 F.Supp. 741

Holly FRANKS, as next friend of H.B.L., a minor, Plaintiff, v. The KENTUCKY SCHOOL FOR THE DEAF, et al., Defendants.

Civil Action No. 96-220.

United States District Court, E.D. Kentucky.

December 27, 1996.

Thomas N. Kerrick, Lanna Martin Kilgore, Kerrick, Grise & Stivers, Bowling Green, KY, for plaintiff.

William B. Pettus, Attorney General's Office, Frankfort, KY, for defendants.

OPINION AND ORDER

FORESTER, District Judge.

This matter is before the Court on the following motions filed by defendants, the Kentucky School for the Deaf, the State Board for Elementary and Secondary Education, Paul Smiley, David Anderson, and Donna Anderson: (1) for judgment on the pleadings or in the alternative, for summary judgment [docket entry 14]; (2) to strike plaintiff's affidavit [docket entry 21]; and (3) for judgment on the pleadings [docket entry 26]. Also before the Court are the following motions filed by plaintiff, Holly Franks: (1) for leave to amend the complaint [docket entry 17]; and (2) to seal the record and for leave to supplement plaintiff's response with tendered affidavit of H.B.L. [docket entry 22]. All parties have responded and replied to the motions listed above, except with respect to defendants' second motion for judgment on the pleadings. Thus, these matters are ripe for review.

Due to the number of issues raised by these motions, each issue is analyzed separately.

I. FACTS AND PROCEDURAL HISTORY

This is a Title IX case with a pendent state claim of negligence and a claim for punitive damages. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, federal question jurisdiction, and § 1367, pendent or supplemental jurisdiction.¹

On May 1, 1996, Holly Franks ("Franks"), mother of H.B.L. ("H.B.L."), filed a complaint as next friend of the minor child, against Kentucky School for the Deaf ("School"), the State Board for Elementary and Secondary Education of Kentucky ("Board"), and the following individuals in their official and individual capacities: Paul Smiley ("Smiley"), David Anderson ("Mr. Anderson"), Donna Anderson ("Ms. Anderson"), and Mike Brame ("Brame"). Franks alleges that while her daughter was in the care of the defendants at a track meet at Centre College on or about May 2, 1995, she was sexually assaulted, sexually abused, sexually harassed, raped at knife point, and physically beaten by Kevin Hoheimer ("Hoheimer"), a male student of the School.

Franks alleges that this incident "altered the conditions of her [daughter's] education and created a threatening, unsafe and abusive educational environment from which Franks transferred her daughter to another school." Verified Complaint at ¶ 18. The other school's tuition is allegedly higher and is located further away from Franks' home, therefore increasing transportation expenses and decreasing the feasibility of visits. Franks states that her daughter suffered mental and physical injuries, pain and suffering, mental anguish, emotional distress and loss of enjoyment of life.

In her first cause of action, Franks alleges that Hoheimer sexually assaulted and abused H.B.L. twice before the incident at bar, and that defendants knew or should have known of the dangers of sexual abuse and rape of H.B.L. that was posed by the continued enrollment at the School of Hoheimer. Franks asserts that defendants failed to take prompt remedial action to prevent such sexual assault and rape, and thus failed to protect and supervise H.B.L. Further, Franks charges that the School "knowingly failed to take action to remedy a hostile environment caused by Hoheimer's sexual harassment of H.B.L. thereby denying H.B.L. the benefits of, or subjected her to discrimination under the educational program of, the School, in violation of Title IX," 20 U.S.C. § 1681-1688. Verified Complaint at ¶ 23.

In her second cause of action, Franks asserts the allegations cited above and contends that defendants breached their duty to supervise and to protect H.B.L. and that this negligence was the proximate cause of H.B.L.'s injuries. Plaintiff asks for one million dollars in compensatory damages.

In her third cause of action, Franks incorporates all allegations cited above and asserts that defendants acted toward H.B.L. with "oppression, fraud or malice," and therefore Franks demands one million dollars in punitive damages under KRS § 411.184, et seq. Verified Complaint at ¶ 34.

On June 3, 1996, Franks voluntarily dismissed all claims against defendant Brame as he was not yet employed at the School at the time of the incident [docket entry 12].

Defendants filed a motion for judgment on the pleadings or in the alternative, for summary judgment, on June 3, 1996 [docket entry 14]. Franks responded on July 3, 1996 [docket entry 18] and filed a motion for leave to amend the complaint [docket entry 17]. Defendants replied to Franks' response, responded to Franks' motion, and filed a motion to strike Franks' affidavit on July 12, 1996 [docket entries 19, 20, and 21]. On July 22, 1996, Franks filed a motion to seal the record and for leave to supplement her response to defendants' motion for summary judgment with the affidavit of H.B.L. [docket entry 22]. Defendants oppose Franks' motion in their response filed July 26, 1996 [docket entry 23], to which Franks replied on August 6, 1996 [docket entry 25]. On December 17, 1996, defendants filed a second motion for judgment on the pleadings, which is in actuality, a supplement to defendants' first motion [docket entry 26]. Plaintiff has not yet responded, however, the time for responding has not lapsed. The Court feels confident that plaintiff's response will not alter its decision on this motion, and therefore will rule on this motion without considering plaintiff's response.

II. DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

In support of their two motions, defendants assert the following as grounds for judgment on the pleadings/summary judgment:

1) Franks lacks standing and is not the proper party plaintiff;

2) Franks failed to state a claim against defendants on which relief can be granted;

3) defendants are entitled to immunity under the 11th Amendment of the U.S. Constitution, and the Kentucky Constitution § 231 with respect to state law claims;

4) defendants are entitled to immunity under the 11th Amendment of the U.S. Constitution with respect to the Title IX claim; and

5) this Court should decline to exercise supplemental jurisdiction over the state claims.

A. RIPENESS OF DEFENDANTS' RULE 12(c) MOTION

Contrary to plaintiff's assertion that Fed. R.Civ.Proc. 12(c) does not apply to defendants' motion for judgment on the pleadings, or alternatively, to defendants' motion for summary judgment, the pleadings are closed and thus defendants' Rule 12(c) motion is ripe for review. However, because both sides have submitted affidavits, documents, and/or correspondence with their respective motions, responses, and replies, the Court will consider such evidence in making its findings, and thus will review defendants' motion as a motion for summary judgment.

B. STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In reviewing a motion for summary judgment, "this Court must determine whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986)). The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

Once the moving party shows that there is an absence of evidence to support the nonmoving party's case, the nonmoving party must present "significant probative evidence" to demonstrate that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Companies, 8 F.3d 335, 340 (6th Cir.1993). Conclusory allegations are not enough to allow a nonmoving party to withstand a motion for summary judgment. Id. at 343. "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2510 (citations omitted).

C. SUBSTANTIVE ISSUES

1. Standing

Title IX provides,

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....

20 U.S.C. § 1681. Defendants assert that Franks is prohibited from pursuing a claim under Title IX because on its face, the statute only applies to students and participants in educational programs. See Bosley v. Kearney R-1 School District, 904 F.Supp. 1006, 1020 (W.D.Mo.1995) (holding that a parent has no cause of action under Title IX); R.L.R. v. Prague Public School District, 838 F.Supp. 1526, 1529 (W.D.Okla.1993) (holding that the student holds the sole cause of action under Title IX). Defendants contend that as the mother and not the...