Henkle v. Gregory

• Court: U.S. District Court — District of Nevada
• Writing for the Court: Mcquaid
• Citation: Henkle v. Gregory, 150 F.Supp.2d 1067 (D. Nev. 2001)
• Decision Date: 28 February 2001
• Docket Number: No. CV-N-00-050-RAM.,CV-N-00-050-RAM.
• Parties: Derek R. HENKLE, Plaintiff, v. Ross GREGORY, in his official and individual capacity, Denise Hausauer, Loretta Rende, Joe Anastasio, Robert Floyd, Serena Robb, Arnel Ramilo, and Glen Selby, in their individual capacities; and the Washoe County School District, a political subdivision of the State of Nevada, Defendants.

150 F.Supp.2d 1067

Derek R. HENKLE, Plaintiff, v. Ross GREGORY, in his official and individual capacity, Denise Hausauer, Loretta Rende, Joe Anastasio, Robert Floyd, Serena Robb, Arnel Ramilo, and Glen Selby, in their individual capacities; and the Washoe County School District, a political subdivision of the State of Nevada, Defendants.

No. CV-N-00-050-RAM.

United States District Court, D. Nevada.

February 28, 2001.

COPYRIGHT MATERIAL OMITTED

Kent R. Robison, Robinson, Belaustegui, Sharp & Low, Reno, NV, Michael F. Tubach, Peter Obstler, Luann L. Simmons, O'Melveny & Myers LLP, San Francisco, CA, Jon W. Davidson, Lambda Legal Defense & Education Fund, Inc., Los Angeles, CA, for Plaintiff.

C. Robert Cox, Michael E. Malloy, Christopher D. Jaime, Rick R. Hsu, Walther, Key, Maupin, Oats, Cox & LeGoy, Reno, NV, for Defendants.

MEMORANDUM DECISION AND ORDER

MCQUAID, United States Magistrate Judge.

Before this court is Defendants' Motion to Dismiss (Doc. # 27). Plaintiff has opposed the motion (Doc. # 28) and Defendants have replied (Doc. # 35).

BACKGROUND

Plaintiff, Derek R. Henkle, began his freshman year, in 1994, at Galena High School ("Galena") after skipping the eighth grade.¹ (Doc. # 22, pp. 4-5). In Fall 1995, Plaintiff appeared on the local access channel's program "Set Free" where he participated in a discussion about gay high school students and their experiences. (Id. at 5). From this point on, the alleged harassment began. Plaintiff alleges that, during school hours and on school property, he endured constant harassment, assaults, intimidation, and discrimination by other students because he is gay and male and school officials, after being notified of the continuous harassment, failed to take any action. (Id.).

One incident of alleged harassment occurred in Fall 1995. Several students approached Plaintiff, on Galena property, calling him "fag," "butt pirate," "fairy," and "homo." They lassoed him around the neck and suggested dragging him behind a truck. (Id. at 6). Plaintiff escaped to a classroom and used an internal phone to report the incident to Defendant, Assistant Vice Principal Hausauer. After waiting nearly two hours, Defendant Hausauer arrived and responded with laughter. Defendant, Principal Gregory, was also made aware of the incident, but they took no action against the alleged harassers despite knowing their identities. (Id.).

Another alleged incident occurred in Plaintiff's English class. Students in the class continuously wrote the word "fag" on the whiteboard and sent him notes calling him "fag." Students also drew sexually explicit pictures and called Plaintiff's attention to them. Defendant Rende, Plaintiff's English teacher, was allegedly aware of the harassment and identity of the harassers. Despite this knowledge, Defendant Rende chose to tell Plaintiff that his sexuality was a private matter that should be kept to himself, rather than end the harassment or discipline the harassers. Plaintiff alleges that Defendants Gregory and Hausauer also knew of this incident, yet did nothing to remedy the situation. (Id. at 6-7).

Plaintiff also faced harassment when reporting the incidents to Galena's discipline office. (Id. at 7). Several students, running by the office and shouting anti-gay epithets, threw a metal object at the Plaintiff that missed him and stuck in the wall. A school administrator witnessed this incident and a report was filed. (Id.). Again, it is alleged that no investigation was made or discipline taken, despite the fact that school administrators were aware of the incident. Plaintiff suffered an emotional breakdown because of this episode. (Id.).

At the end of the Fall 1995 semester, Plaintiff asked to leave Galena because he feared further harassment and assaults. (Id. at 8). Defendant Anastasio² decided to transfer Plaintiff to Washoe High School ("Washoe"), an alternative high school. Plaintiff's transfer allegedly was conditioned on the fact that he keep his sexuality to himself. (Id.). During Plaintiff's time at Galena, he wore buttons on his backpack that said "We are everywhere" and "Out," however, upon his transfer to Washoe, he removed the buttons. (Id.).

Defendant Floyd was the Principal at Washoe during Plaintiff's tenure from January 1996 to May 1996. Defendant Floyd, on several occasions, allegedly told Plaintiff to keep quiet about his sexual orientation and during one meeting with Plaintiff, Floyd told him to "stop acting like a fag." (Id.). On some occasions, Plaintiff expressed his viewpoints and identity, but for the most part kept them to himself. Finally, Plaintiff requested a transfer because of the lack of educational opportunities at Washoe. (Id. at 8-9). Plaintiff alleges that Floyd initially told him the transfer was not possible because Plaintiff was openly gay and a traditional high school would not be appropriate. (Id.).

Plaintiff was subsequently transferred to Wooster High School ("Wooster") and, once again, prior to the transfer, was told by Floyd to keep his sexuality to himself. (Id. at 9). When Plaintiff's classmates, at Wooster, learned his identity and the fact that he was gay, they allegedly harassed and intimidated him during school hours and on school property. Plaintiff reported the incidents several times, however, he alleges the administration took no action. (Id. at 10).

One particular incident of inaction occurred when Plaintiff was assaulted at Wooster. Several students approached him shouting gay epithets, and one student punched him in the face, calling him "bitch." The other students encouraged the attack. (Id.). School police, Defendants Ramilo and Selby, allegedly witnessed the attack, but did nothing. In fact, Plaintiff alleges Defendants Ramilo and Selby discouraged him from calling the assault a hate crime and from reporting it to the Reno Police Department. Furthermore, Defendants refused to arrest the attacker despite knowing the identity. (Id. at 11).

After this incident, Defendants Floyd and Anastasio agreed that Plaintiff should be transferred back to Washoe. However, Floyd later decided not to accept Plaintiff at Washoe despite having room for him. Instead, Defendants placed Plaintiff in an adult education program at Truckee Meadows Community College, thus making Plaintiff ineligible for a high school diploma because he was no longer enrolled in a public high school. (Id. at 11-12).

This lawsuit followed as a result of Defendants' actions. At issue in Defendants' 12(b)(6) Motion to Dismiss for Failure to State a Claim are: claims One and Two for violations of the Equal Protection Clause of the Fourteenth Amendment based upon sexual orientation and sex, respectively, both of which are brought pursuant to 42 U.S.C. § 1983; claims Three and Four for violations of the First Amendment based upon suppression of protected speech and retaliation for engaging in protected speech, respectively, both of which are brought pursuant to 42 U.S.C. § 1983; claims Seven, brought pursuant to 42 U.S.C. § 1983, and Eight, brought pursuant to 20 U.S.C. § 1681 et seq. (Doc. # 22, p. 23),³ for violations of Title IX for deprivation of educational benefits on the basis of sex and for allowing peer harassment on the basis of sex, respectively; and claims for punitive damages⁴. (Doc. # 27, pp. 3-4).

For the claims at issue, Plaintiff sued Defendants Gregory, Anastasio, Floyd, Hausauer, Rende, Robb, Ramilo, and Selby in their individual capacities and also sued Gregory in his official capacity. (Doc. # 22, pp. 16-19, 22-23; Doc. # 27, p. 3). Plaintiff seeks compensatory and punitive damages from the Defendants in their individual capacities and the Washoe County School District ("WCSD") and injunctive relief from Defendant Gregory in his official capacity. (Doc. # 22, pp. 16-27).

STANDARD FOR REVIEW

"A dismissal under Fed.R.Civ.P. 12(b)(6) is essentially a ruling on a question of law." North Star Inter'l v. Ariz. Corp. Comm., 720 F.2d 578, 580 (9th Cir.1983) (citation omitted). In considering a motion to dismiss for failure to state a claim upon which relief may be granted, all material allegations in the complaint are accepted as true and are to be construed in a light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996) (citation omitted). For a defendant-movant to succeed, it must appear to a certainty that a plaintiff will not be entitled to relief under any set of facts that could be proven under the allegations of the complaint. Id. at 338. A complaint may be dismissed as a matter of law for, "(1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim." Smilecare Dental Group v. Delta Dental Plan, 88 F.3d 780, 783 (9th Cir.1996) (quoting Robertson v Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984)).

DISCUSSION

I. Are Plaintiff's First, Second, Seventh and Eighth Claims Brought Pursuant to § 1983 Subsumed by the Title IX claims?

The issue before the court is whether a § 1983 action may be brought based upon an alleged violation of Title IX (Seventh and Eighth Claims for Relief), and, even if those claims are subsumed in Title IX, can a § 1983 action based upon a violation of equal protection (First and Second Claims for Relief) be maintained. This is a question of first impression in this court and in this circuit.

42 U.S.C. § 1983 provides a cause of action to a plaintiff when a person acting under color of state law subjects that plaintiff to "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States]." 42 U.S.C. § 1983 (1994). In 1980 the Supreme Court broadly construed the "laws" language of the statute and held that § 1983 "laws" encompassed all statutory violations of federal law. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (specifically construing a Social Security Act violation). One year later, the court limited t...