Plumeau v. School Dist. No. 40 County of Yamhill, 96-35074
| Decision Date | 04 December 1997 |
| Docket Number | No. 96-35074,96-35074 |
| Citation | 130 F.3d 432 |
| Parties | 122 Ed. Law Rep. 588, 97 Cal. Daily Op. Serv. 9081, 97 Daily Journal D.A.R. 14,663 Barbara PLUMEAU, Personally; Amanda Barton-Plumeau, by her mother and guardian ad litem, Barbara Plumeau, Plaintiffs-Appellants, v. SCHOOL DISTRICT #40 COUNTY OF YAMHILL; and Adrian Moore, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kent L. Gubrud, McMinnville, OR, for plaintiffs-appellants.
Carol J. Fredrick (argued), Larry A. Brown (on the brief), McMinnville, OR, for defendants-appellees.
Appeal from the United States District Court for the District of Oregon; Janice M. Stewart, Magistrate Judge, Presiding. D.C. No. CV-94-00569-JMS.
Before: FLETCHER and TASHIMA, Circuit Judges, and SCHWARZER, * District Judge.
Amanda Barton-Plumeau and her mother Barbara Plumeau ("Plumeaus") appeal the grant of summary judgment to the County of Yamhill, Oregon School District # 40 ("School District"), dismissing their claims against the School District for Amanda's sexual abuse by a school janitor on school premises. 1 We have jurisdiction, 28 U.S.C. §§ 636(c) and 1291, and we affirm.
Between 1983 and 1987 Amanda Barton-Plumeau, then 6-9 years of age, attended Memorial Grade School, a public grade school in McMinnville, Oregon. During this period, Amanda was sexually abused on school premises by the school janitor, Adrian Moore. Memorial School employees and School District officials claim that they knew nothing about the abuse at the time. The Plumeaus contend that Moore's behavior should have alerted school personnel to the possibility that Moore was abusing children at Memorial.
When Amanda was in the first grade, Amanda was standing in line for lunch in the school cafeteria when she saw Moore and ran out of line to greet him. Moore picked her up and hugged her. Amanda recalls that her first grade teacher reprimanded her and told her to get back in line. Later the same day, Amanda was taken to the office of the school principal, Valva Just. told Amanda that it was inappropriate for Moore to pick her up and that she should not permit him to do so. Just did not ask Amanda whether Moore had any other physical contact with her.
Beginning in early 1986, Just began receiving complaints about Moore's behavior from Memorial School employees. Jean Bresee, an instructional technician, reported that on numerous occasions she had observed Moore standing around on the playground watching children. Jean Meicho, a teacher's assistant responsible for playground duty during recess, also reported to Just that she witnessed Moore standing around on the playground, holding the little girls' hands, and hugging them.
In September 1986, Bresee and Meicho asked Just to come out on the playground to observe Moore's behavior. According to Just's records, when she went to the playground Moore came out to watch the children, but quickly went back inside when he saw her. After this incident, Just asked Meicho to report to her whenever she witnessed Moore watching children on the playground. Other Memorial School staff also reported to Just that Moore stood around watching children on the playground. Several teachers reported to Just that Moore spent almost an entire morning observing aerobic exercise classes. Mrs. Williams, a teacher, reported to Just that she had observed Moore picking up children on the playground.
Just informed the School District's Maintenance Supervisor and Moore's official direct supervisor, Hal Schultz, of the complaints about Moore. On June 9, 1986, Just and Schultz held a conference with Moore to discuss their concerns about his work. They warned Moore to stop watching and picking up children on the playground. In the Fall of 1986, Just and Schultz held two more conferences with Moore to discuss their concerns about his failure to perform adequately his job duties and his wasting time standing around watching children. They admonished him in writing to stay off the playground while children were present and told the teachers aides to notify Just if they observed Moore on the playground during the school day.
Despite these repeated admonitions, the complaints about Moore continued. On January 20, 1987, Bresee reported to Just that she discovered Moore standing alone in a darkened room peeking out the window onto the playground where the children were playing. On February 2, 1987, Just and Mr. Williams, the principal at Adams Elementary School, another grade school in the School District, arranged a job-switch between Moore and Leonard Cushman, a disabled janitor from Adams School, ostensibly to accommodate Cushman's disability, and to improve Moore's work performance. At the time of the switch, Just informed Mr. Williams that Moore had been observed watching children and she also told Mr. Williams she was concerned about Moore's job performance. She did not inform Mr. Williams that Moore had been observed holding students' hands, hugging them, and picking them up.
Less than three months after Moore's transfer to Adams School, the father of a female student at Adams School called Mr. Williams to report that his daughter told him that she had been sexually abused by Moore while she was in his work area. Mr The day after the Adams School father complained, the School District fired Moore. The following day he was arrested on charges of sexual abuse. The Children's Services Division ("CSD") and the McMinnville Police Department ("MPD") were informed of the allegations and both agencies conducted investigations. These investigations disclosed that Moore sexually abused approximately seventeen Adams students during his two and one half months at the school. Moore admitted to the police that he had touched the children when they were alone in his work area to help with janitorial tasks. He pled guilty to three counts of Sexual Abuse in the First Degree of ten girls and was sentenced a term of imprisonment not to exceed five years on each count. However, the court suspended Moore's sentence and ordered that he be placed on probation for five years.
Williams immediately reported these allegations to the Interim Superintendent of the School District. The following day Mr. Williams and a School District Child Development Specialist interviewed the girl and others who reported similar behavior by Moore.
The MPD and CSD investigators also interviewed Memorial School personnel, including Just who seemed to discourage investigation at Memorial. According to MPD Detective Day, Just minimized the facts about Moore having been observed picking up and watching children and "did not seem to want to talk about Moore's transfer to Adams or anything else concerning Moore." The investigators found one child who had been sexually abused at Memorial School. However, no further investigation was carried out at Memorial School and Moore's abuse of Amanda was not discovered at that time.
In May 1992, five years after Moore's initial arrest and conviction, Amanda attempted suicide and was hospitalized. Shortly after being admitted to the hospital, Amanda disclosed for the first time that she had been sexually abused by Moore between 1984 and 1987. The CSD, MPD, and the Yamhill County District Attorney immediately investigated Amanda's claims. Barbara Plumeau fully cooperated with the agencies' investigations. Moore pled guilty to First Degree Sexual Abuse of Amanda, was convicted, and sentenced to five years' probation.
At Moore's sentencing hearing on September 9, 1993, a Victims' Assistance Worker from the Yamhill County District Attorney's office, Kathleen Robbins, told Barbara Plumeau that she believed that Just was responsible for what had happened to Amanda and the other students at Memorial. At this point, the Plumeaus claim they began investigating Just's actions and the actions of the School District in regard to Amanda's abuse. On May 10, 1994, the Plumeaus' counsel formally notified the School District, through its counsel, of the Plumeaus' claims against the School District.
The Plumeaus brought this action in federal court against the School District and Moore for negligence, battery and sexual abuse under the Oregon Tort Claims Act, Oregon Revised Statutes §§ 30.260-.300 ("OTCA"), and for violation of Amanda's civil rights, under 42 U.S.C. § 1983. The parties consented to hearing before a magistrate judge. Fed.R.Civ.P. 73; 28 U.S.C. § 636(c). The magistrate judge granted summary judgment to the School District on all counts. Plumeau v. Yamhill County Sch. Dist. #40, 907 F.Supp. 1423 (D.Or.1995). The magistrate judge concluded that the Plumeaus state tort claims were barred for failure to notify the School District of their claims within the time specified by the OTCA. Id. at 1433-35; Or.Rev.Stat. § 30.275. The magistrate judge further held that the facts did not support municipal liability under § 1983. Id. at 1435-46. The Plumeaus timely appealed.
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