Plumeau v. Yamhill Cty. Sch. Dist.

• Court: U.S. District Court — District of Oregon
• Citation: Plumeau v. Yamhill Cty. Sch. Dist., 907 F.Supp. 1423 (D. Or. 1995)
• Decision Date: 14 November 1995
• Docket Number: No. CV-94-569-ST.,CV-94-569-ST.
• Parties: Barbara PLUMEAU, personally and Amanda Barton-Plumeau by her mother and guardian ad litem, Barbara Plumeau, Plaintiffs, v. YAMHILL COUNTY SCHOOL DISTRICT # 40 and Adrian Moore, Defendants.

907 F. Supp. 1423

Barbara PLUMEAU, personally and Amanda Barton-Plumeau by her mother and guardian ad litem, Barbara Plumeau, Plaintiffs, v. YAMHILL COUNTY SCHOOL DISTRICT # 40 and Adrian Moore, Defendants.

No. CV-94-569-ST.

United States District Court, D. Oregon.

November 14, 1995.

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Roger Tilbury, Roch Steinbach, Portland, OR, Kent L. Gubrud, McMinnville, OR, for Plaintiffs.

Robert A. Petersen, Assistant Attorney General, Salem, OR, for Yamhill County, Yamhill County Children's Service Div.

Robert M. Johnstone, Larry A. Brown, Robert M. Johnstone P.C., McMinnville, OR, for Yamhill School Dist. No. 40, City of McMinnville.

OPINION

STEWART, United States Magistrate Judge:

INTRODUCTION

Plaintiffs Amanda Barton-Plumeau and her mother, Barbara Plumeau, filed this action under 42 U.S.C. § 1983 against defendants Yamhill County School District # 40 ("the District") and Adrian Moore ("Moore").¹ Plaintiffs' claims arise out of Moore's alleged sexual abuse of Amanda Barton-Plumeau from 1983 to 1987.

In the Amended Complaint, both plaintiffs allege a state tort claim for battery and sexual abuse against both defendants. In addition, as against the District, both plaintiffs allege an additional state tort claim for negligence. Finally, Amanda Barton-Plumeau alleges that the District violated her rights under the Fifth and Fourteenth Amendments to the United States Constitution by failing to protect her from sexual abuse in spite of its knowledge that Moore was sexually abusing schoolgirls ("Third Alternative Cause of Action").

All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with F.R.C.P. 73 and 28 U.S.C. § 636(c).

The District has filed a Motion for Judgment on the Pleadings; Motion for Summary Judgment; and Alternative Motion for Summary Judgment (docket # 77) ("District's Motion"). In its motions, the District asks this court to dismiss Barbara Plumeau as a plaintiff for lack of standing and to dismiss or, alternatively, grant summary judgment in its favor on all of plaintiffs' claims. These motions incorporate by reference various documents previously filed in this case. District's Motion, p. 3. For the reasons set forth below, all claims against the District are dismissed.

UNDISPUTED FACTS

The parties have submitted three separate documents detailing the factual background of this case.² The following facts are taken from those documents and the materials supporting them:³

At all relevant times, the District operated Memorial Elementary School ("Memorial School") and Adams Elementary School ("Adams School"). Moore is an adult male who, on November 1, 1981, was employed by the District to work as a janitor at Memorial School. Hal Schultz ("Schultz") was the District's Maintenance Supervisor and Moore's direct supervisor.

From 1983 through 1988, Amanda Barton-Plumeau ("Amanda") was enrolled as a student and attended kindergarten through fourth grade (ages 6-9) at Memorial School. Valva D. Just ("Just") was the principal at Memorial School from July 1, 1984 to June 30, 1988.

As early as January 1986, Memorial School employees began reporting to Just that they had observed Moore watching or interacting with schoolchildren at various times. Jean Bresee, who had been an instructional technician at Memorial School since 1980, reported that she saw Moore "on the playground watching children on many different occasions" and that she "observed him watching children from the cafeteria windowed door on many times throughout different days instead of performing his duties." Affidavit of Jean Bresee ("Bresee Aff"), ¶ 4. Bresee does not specify when she first observed Moore watching the children or when she first reported this behavior to Just. However, the first record of such a report is found in Just's notes of January 20, 1986 and indicates that Bresee reported that she had seen Moore in a darkened classroom "peeking out through the curtains at the children on the playground" the previous day. Exhibit 15, p. 2.⁴

The record contains no evidence of any more reports of such behavior to Just for the remainder of the 1985/86 school year. However, on June 9, 1986, Just and Schultz apparently held a conference with Moore to discuss their concerns that Moore was "wasting work time by standing around watching students during lunch and play times." Exhibit 18, p. 3. A police report completed in 1987 indicates that their conferences may have involved "cautioning" Moore not to pick up children. Exhibit 2, p. 8.

At the beginning of the 1986/87 school year, on September 8, 1986, Bresee reported to Just that she had observed Moore standing in the middle of the playground watching children. Bresee Aff, ¶¶ 6-9 and Exhibit 15, p. 3. The following day, Bresee and a teacher's assistant, Jean Meicho ("Meicho"), asked Just to come out on the playground to observe Moore. When Just went out on the playground, Moore came out and watched the children play, but quickly returned to the school building when he saw Just.

Meicho was a teacher's assistant at Memorial School from September 1979 until June 1993. Meicho was responsible for playground duty during recess. At unspecified times, Meicho observed Moore "holding the little girls' hands and hugging them." Affidavit of Jean Delores Meicho ("Meicho Aff"), ¶ 5. Meicho was "not concerned about this behavior because it was not unusual for any of the school employees that came on the playground." Id. Meicho apparently saw Moore standing on the playground watching children on five occasions, hugging children on five occasions, and watching children from a school window on one occasion. While some of these instances may have taken place prior to the fall of 1986, Meicho was not bothered by them as they were not "unusual" and Just had not yet told Memorial School staff to report to her if they saw Moore on the playground. Deposition of Jean Meicho, pp. 24-29, 41, attached as Exhibit 3 to Plaintiffs' Amended Statement.

Meicho became concerned that Moore was "not doing his job" in the fall of 1986 because Moore was spending an increasing amount of time "on the playground standing and watching the children and not performing his job." Meicho Aff, ¶¶ 4, 8. Meicho reported her concerns to Sally Williams ("Mrs. Williams"), then a third-grade teacher at Memorial School, who told Meicho to report her concerns to Just. Id, ¶ 8. As described above, Meicho and Bresee then asked Just to come to the playground to observe Moore. At that time, Just apparently told Meicho to report to her if they saw Moore on the playground. Meicho Depo, pp. 28-29.

After the September 8 and 9, 1986 incidents, unnamed teacher's aids reported to Just that Moore came out on the playground on September 10 and 12, 1986. In addition, Bresee reported that on September 12, 1986, she observed Moore standing in the "Pod" area watching children on the playground.

On two separate occasions during the fall of 1986, Mrs. Williams, a teacher, saw Moore pick up children while on the playground. Mrs. Williams testified that she reported these observations to Just, who responded that she "had other reports" and "would take care of it." Deposition of Sally Williams, pp. 5-15, attached as Exhibit 5 to Plaintiffs' Amended Statement. However, Just's notes do not reflect these reports from Mrs. Williams.

Just and Schultz held two more conferences with Moore on September 12 and November 10, 1986 to discuss their concerns that Moore was failing to adequately perform his job responsibilities because he was wasting time standing around watching students. Just Aff, ¶ 8; Exhibit 18, p. 3. Moore was told to stay off the playground when children were present and the teachers aides were notified to report to Just if they observed Moore on the playground during the school day. Just Aff, ¶ 7. At the November 10, 1986 conference, Just gave Moore a memorandum which stated:

Several of the teachers reported to me that you spent almost the entire morning in the gym last Friday watching Miss Dresser and Mr. Autencio teach Jazzercise classes. Since I was out of the building, I did not observe you doing this. I have already discussed with you the matter of your wasting time by standing on the playground during recesses and standing in the cafeteria at lunch time. I don't understand how you can find the time to stand around and watch the children as much as you do. There are many, many jobs that are not being done around the school. Please apply yourself to these things in the future.

Just Aff, ¶ 8 and Plaintiffs' Exhibit 10, attached to Plaintiff's Amended Response to Defendant School District's Second Motion to Dismiss and for Summary Judgment ("Plaintiffs' Amended Response").

Gary Williams ("Mr. Williams") was the principal at Adams School from July 1984 to June 1992. Mr. Williams was concerned about the job performance of the head custodian, Leonard Cushman ("Cushman"). Adams School is a two-story building and Memorial School is only a one-story building. Cushman apparently had knee problems which made it difficult to negotiate the stairs at Adams School. Mr. Williams discussed these concerns with Schultz and discussed with Just the possibility of a job-switch between Moore and Cushman.

Mrs. Williams and/or Just told Mr. Williams that Moore had been observed looking out the window watching children on the playground. In addition, Mr. Williams knew that one of the concerns about Moore's job performance at Memorial School was that Moore was on the playground watching children when he should have been working. However, Mr. Williams denies knowing that anyone had specific concerns about whether Moore's interactions with children were "inappropriate." Affidavit of Gary Keith Williams, ¶ 21.

In November or December 1986, Cushman and Moore were placed on ...