J.B.F. v. Ky. Dep't of Educ.

• Decision Date: 03 June 2016
• Docket Number: No. 5:15-CV-33-REW,5:15-CV-33-REW
• Parties: J.B.F., by and through his guardian Marilyn Stivers, Plaintiff, v. KENTUCKY DEPARTMENT OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

J.B.F., by and through his guardian Marilyn Stivers, Plaintiff, v. KENTUCKY DEPARTMENT OF EDUCATION, et al., Defendants.

No. 5:15-CV-33-REW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON

June 3, 2016

MEMORANDUM OPINION AND ORDER*** *** *** ***

Defendants—the Kentucky Department of Education (KDE), Kentucky School for the Deaf (KSD),¹ and Scott Haun² in his individual and official capacities—moved for summary judgment. DE #20 (Motion). Plaintiff, J.B.F.,³ by and through his guardian Marilyn Stivers, responded. DE #25 (Response). Defendants replied. DE #27 (Reply). The motion is ripe for consideration. For the following reasons, the Court fully GRANTS DE #20. Various immunity doctrines shield each Defendant from every claim. Alternatively, the state-law claims against Haun individually fail on the merits.

I. BACKGROUND

On February 4, 2014, two KSD students and dormitory roommates, J.B.F. (then age 20) and J.B., engaged in sexual acts in their shared dorm bathroom. There is evidence in the record to support either that the acts were consensual or nonconsensual. Compare DE ##18-4 & 18-5 (Michael Jamison, dorm team leader, contemporaneously characterizing the occurrences as "Consensual sexual activities"), DE #18-6 (Haun letter to Stivers expressing same), and DE #18-8 (contemporaneous notes stating, "forced? willing? said willing. embarrassed"), with, e.g., DE #18-1 (J.B.F. Depo.), at 32 ("At any time did you consent or tell J.B. that was okay? No.").

Beside the limited documentation from the school, the proof mostly consists of J.B.F.'s and Stivers's depositions. J.B.F. described the events leading up to the incident. While a student at KSD, J.B.F. "wanted to be roommates with J.B." DE #18-1 (J.B.F. Depo.), at 12. J.B.F. generally stated that two other students (not J.B.) had been mean to him previously (which he had told to someone at KSD). Id. at 15-16. J.B.F. agreed that before the incident, he had never told anyone at KSD that he was afraid of J.B. Id. at 45. Stivers confirmed. DE #18-2, at 24. Following a free-flowing deposition exchange, the following picture emerged of J.B.F.'s version of events:

On February 4, 2014, by around 4:15 p.m., J.B.F. had returned to his dorm after finishing in workshop and concluded showering. He re-dressed in the bathroom and slightly cracked the bathroom door to let steam out. J.B.—his roommate—then came into the bathroom and looked up pornography on his phone. Both students left the bathroom. Apparently, at that time, J.B.F. left the dorm room, walked down the hallway, and alertedJamison⁴ and Mike Yance⁵ that J.B. had accessed pornography—which was all J.B.F. told Jamison and Yance. At some point, J.B. also left the dorm and went to Jamison's office. Again, at some time (J.B.F.'s timeline is by no means clear), both students returned to the dorm (although not together). See generally DE #18-1 (J.B.F. Depo.).

While J.B.F.'s deposition reflects considerable confusion concerning the precise sequence, J.B.F. indicated that J.B. asked him to have sex while they were in the living room after returning from Jamison's office. J.B.F. declined. At some point, J.B.F. and J.B. moved into the bedroom. There, J.B. said he wanted to punch J.B.F. J.B. then went into the bathroom while J.B.F. stayed in the bedroom. J.B. later returned to the bedroom and again said that he wanted to have sex. J.B. then physically grabbed J.B.F.'s arm and pulled him into the bathroom. J.B.F. said both that he tried to escape (physically tried to get out) (DE #18-1, at 17, 27) and that he did not try to fight J.B. off (id. at 26). J.B. directed J.B.F. to perform oral sex and engage in anal sex; J.B.F. declined. J.B. then said he wanted to kill J.B.F. and used a key as a weapon. J.B. punched J.B.F. with the key in the chest three times. J.B. had locked the bathroom door, and J.B.F. unsuccessfully tried to open it. By that point, J.B. was naked, but J.B.F. initially remained clothed, although he said that J.B. "pulled [his] underwear down." Id. at 28. Ultimately, J.B.F. performed oral sex on J.B., and the two engaged in anal sex. J.B.F. testified that, contrary to the school's reports, he did not consent to the acts.⁶

At around 4:30 p.m. (a total elapsed time of fifteen minutes since J.B.F.'s return to the dorm from workshop),⁷ Yance appeared at the room to locate J.B.F. and "flickered the light switch on and off and banged on the door[.]" Id. at 26. When this happened, J.B. opened the bathroom door, and Yance "found out" what had happened between the students. Id. at 38. Yance retrieved Jamison, and the two returned to the students' dorm. Jamison spoke with J.B.F.⁸ J.B.F. testified that he did not tell Jamison that he consented to sex with J.B. Id. at 39.

Jamison, however, summarized the incident as follows:

I was doing a quick room check of students this afternoon and went to [J.B.F.'s] room to see if he had begun to clean his room as he wasrestricted to his room this afternoon until it was cleaned. I entered the room and [J.B.F.] and his roommate [J.B.] were no where to be found in the room. I noticed the shower door closed. I went to check to see if [J.B.] was any where else in the dorm and he was not. I went back to the room and flipped the light switch to get whoever was in the shower room's attention. After approximately 4 minutes, [J.B.] opened the door while trying to button his pants. [J.B.F.] was hiding behind the door trying to latch his pants up. He didn't have his shoes on as they were on the floor and it was obvious what was going on in the shower room. Both boys were sent to my office for discussions. [J.B.F.] was not cooperative at first but later confessed to allowing anal penetration and performing manual stimulation as well as oral sexual activities on [J.B.]. [J.B.] also confessed to [J.B.F.] performing manual stimulations on him as well as [J.B.F.] performing oral sex on him as well. [J.B.] denied any penetration occurred.

DE #18-4. The contemporaneous handwritten notes indicate that J.B.F. changed the story of what happened multiple times—"at 1st denied [line break] admitted 'yes' . . . [line break] anal sex yes [line break] no anal sex [line break] [J.B.F.] later said no anal then yes." DE #18-8, at 1.⁹

There is evidence that KSD officials attempted to contact Stivers very soon after the incident. See, e.g., DE ##18-4 (Incident Report Form on J.B.F. with "Parent contacted" box checked on 2/4/14 and handwritten note stating, "left message to call back . . . Jamison called left message several times to call back"); 18-8 (Notes), at 2 ("M.J. [presumably, Jamison] tried to contact aunt as he reported. left message") and 3 ("M.J. called aunt left message."). An email indicates that Jamison made a "third attempt" to call Stivers at 8:27 p.m. on February 6, 2014. DE #20-2. Jamison indicated that he got her machine for the third time that day and "left another message[.]" Id. Further, J.B.F. testified that he told Stivers of the incident the Friday after it happened. DE #18-1, at 42.Haun indisputably sent the letter informing Stivers of the disciplinary action on March 4, 2014—a month following the incident. DE #18-6 (Letter).

Marilyn Stivers is the legal guardian of J.B.F. DE #1-1 (Complaint), at ¶ 2. Stivers, in her deposition, had no "reason to believe that there were any altercations, harassment, abuse between [J.B.F.] and J.B. prior to the February 2014 incident[.]" DE #18-2, at 25. Stivers described receipt of the KSD letter as her first notice of the incident. She expressly stated that J.B.F.'s testimony that he notified her of the incident the Friday after it occurred was false. Id. at 28-29. After receiving the letter, she confronted J.B.F., who described the incident to her and said that KSD staff ("they") said that J.B.F. was "guilty." Id. at 27. She said [and mostly this is hearsay] that both students were "taken to the office in the same office at the same time sitting in the same room to be questioned." Id. at 28. She denied knowledge of KSD's attempts to call her: "There was nothing on my home phone, and I've always told them to call my cellphone. The home phone is just for Internet only. There was no messages [sic] on my phone." Id. at 33-34.¹⁰ Stivers and her husband went to KSD the Monday after letter receipt. She questioned KSD officials about "what took them so long to tell me why they questioned my son without my presence," why the officials put both students in the same room for questioning, and why they told J.B.F. he was "guilty." Id. at 35. She further inquired into the guidelines for police or other state services contact. Id. at 36. She described a later police investigation she initiated. Id. at 39-40.¹¹

Stivers testified that she did think that KSD intended to harm J.B.F. Id. at 55 ("Because the incident happened in March and I was not notified until February,¹² and I kept sending my son back not knowing what was going on, oblivious to what had happened to him. . . . I believe they did not give him protection. They did not take every measure to protect him or anybody else at that school."). However, Stivers was not aware of other incidents of harassment or abuse of J.B.F. at KSD following the J.B. incident. Id. at 57-58. She agreed that KSD's handbook did not require a police investigation. Id. at 60. She did not have information "that indicates the policies or procedures were applied differently to [J.B.F.] than they were applied to other students in the school[.]" Id. at 61. She agreed that J.B.F. and J.B. were separated as roommates. Id. at 62. Stivers did not have any information regarding KSD staff training or instruction. Id. She indicated that J.B.F. may not understand what the word "consensual" means. Id. at 64-65.

The underlying J.B.F.—J.B. incident, along with Defendants' actions preceding and following it, gave rise to this case. J.B.F., by and through Stivers, his guardian, sued, alleging four claims: (1) § 1983 / Equal...