Roe ex rel. Callahan v. GUSTINE UNIFIED SCHOOL

Decision Date22 December 2009
Docket NumberNo. 1:07-CV-00796-OWW-SMS.,1:07-CV-00796-OWW-SMS.
Citation678 F. Supp.2d 1008
PartiesJohn ROE, a minor, by and through his Guardian ad Litem, Sheila Irene CALLAHAN, Plaintiff, v. GUSTINE UNIFIED SCHOOL DISTRICT; Golden Valley Unified School District; Kyle Matthew Fischer, aka Kyle Simmons, a minor; Kelly Simmons; Jason Simmons; Matthew McKimmie, a minor; Myrna Tyndal; Tommy San Felipo, a minor; Frank Hudson; Betty Hudson; Carl Scudder; Jason Spaulding; Anthony Souza; Adam Cano; Timothy Hayes; Kuljeep Mann; Chris Imperatrice; and Does 1-200, Defendants.
CourtU.S. District Court — Eastern District of California

Kimberly Gail Flores, Terry L. Allen, Allen, Fagalde, Albertoni & Flores, LLP, Merced, CA, for Sheila Irene Callahan.

Michael Fischer, Los Banos, CA, pro se.

Jason Simmons, Los Banos, CA, pro se.

Kelly Simmons, Los Banos, CA, pro se.

Matthew McKimmie, Gustine, CA, pro se.

Myrna Tyndal, Gustine, CA, pro se.

Tommy Sanfilippo, Gustine, CA, pro se.

Betty Hudson, Gustine, CA, pro se.

Frank Hudson, Gustine, CA, pro se.

James F. McBrearty, Tuttle & McCloskey, Fresno, CA, for Carl Scudder.

Jeffrey R. Olson, M. McCormick, Barstow, Sheppard, Wayte & Carruth, Modesto, CA, Mart Benjamin Oller, IV, McCormick, Barstow, Sheppard, Wayte & Carruth, Fresno, CA, for Jason Spaulding, Anthony Souza, Adam Cano, Gustine Unified School District.

Paul Auchard, Auchard & Stewart, Fresno, CA, for Timothy Hayes, Kuljeep Mann, Chris Imperatrice, Golden Valley Unified School District.

MEMORANDUM DECISION RE DEFENDANTS GUSTINE UNIFIED SCHOOL DISTRICT, JASON SPAULDING, ANTHONY SOUZA, AND ADAM CANO'S MOTION FOR SUMMARY JUDGMENT (Doc. 96) AND DEFENDANT CARL SCUDDER'S MOTION FOR SUMMARY JUDGMENT (Doc. 91.)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

This case arises from alleged student-on-student harassment of Plaintiff John Roe while he was attending a football camp at Liberty High School in July 2006. In July 2006, Plaintiff was an incoming freshman at Gustine High School, who intended to play football for Gustine High in the fall of 2006. Plaintiff attended a football camp jointly coordinated by Gustine and Liberty High Schools. While at football camp, Plaintiff was assaulted by several upper class teammates, and suffered additional acts of hazing by these individuals.

The defendants are the Gustine and Golden Valley Unified School Districts, Gustine High School football coaches, the individuals who allegedly perpetrated these events, and the parents of the minors allegedly involved in these events.

On May 31, 2007, Sheila Irene Callahan, as guardian ad litem for John Roe,1 a minor, the real party in interest, filed this action against defendants under 20 U.S.C. section 1681-1688 ("Title IX") and 42 U.S.C. § 1983, as well as various state law tort claims. Plaintiff contends that the school districts and their employees violated Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681 et seq., by being deliberately indifferent to the alleged harassment. Plaintiffs' claim for relief under 42 U.S.C. § 1983 is based on an alleged equal protection violation under U.S. Constitutional Amendment XIV.

Plaintiff's state law claims against the school districts and its employees relate to their negligent failure to supervise the students under their custody and control.

Before the court are motions for summary judgment filed by Defendants Gustine Unified School District, Jason Spaulding, Anthony Souza, and Adam Cano (collectively "School District Defendants") and Defendant Carl Scudder ("Scudder") (all collectively "Defendants").2 Defendants' motions seek summary judgment as to all of Plaintiff's claims against Gustine Unified School District or School District employees.

II. FACTUAL BACKGROUND

Because all material facts must be viewed in the light most favorable to the non-movant, they are accepted as true. The parties' submissions present the following facts:3

A. The Parties

At all relevant times, Plaintiff, John Roe, was a minor, under the age of eighteen years. (Compl. ¶ 5.) Sheila Callahan is the biological mother of John Roe, and both reside in Glendale, Arizona. (Compl. ¶ 5.)

Gustine Unified School District ("GUSD") was a public school district in the County of Merced. (Compl. ¶ 6.) Gustine High School ("GHS") was a subordinate entity under GUSD. (Id.) Defendants Carl Scudder, Jason Spaulding, Anthony Souza, and Adam Cano (collectively "Individual GUSD Defendants") are employees of a GUSD and/or Gustine High School. (Compl. ¶ 7.)

Golden Valley Unified School District ("GVUSD") was a public school district in the County of Madera. (Compl. ¶ 8.) Liberty High School ("LHS") was a subordinate entity under GVUSD. (Id.) Defendants Hayes, Mann, and Imperatrice (collectively "Individual GVUSD Defendants") are employees of a GVUSD and/or Liberty High School. (Compl. ¶ 9.)

Defendants Kyle Simmons and Michael Simmons were minors residing in the County of Merced. (Compl. ¶ 10.) Defendants Kelly Simmons and Jason Simmons are the biological parents of Kyle Simmons and Michael Simmons. (Id.)

Defendant Matthew McKimmie is a minor residing in the County of Merced. (Compl. ¶ 11.) Defendant Myrna Tyndal is the biological mother of Matthew McKimmie. (Id.)

Defendant Tommy San Felipo is a minor residing in the County of Merced. (Compl. ¶ 12.) Defendants Frank Hudson and Betty Hudson are the legal guardians of Tommy San Felipo. (Id.)

In July 2006, Kyle Simmons, Michael Simmons, Matthew McKimmie, and Tommy San Felipo were upperclassmen on the Gustine High School football team. It is undisputed that Kyle Simmons and Michael Simmons were reprimanded by GHS administrators for behavioral issues prior to the July 2006 football camp, including having their interdistrict transfers suspended or revoked. (Scudder Dep. 117:3-117:25.) Coach Scudder was aware of the suspension prior to the July 2006 football camp. (Id.)

B. The July 2006 Football Camp

On July 13th through July 15th, 2006, Gustine High School and Liberty High School held a contact football camp at Liberty High School. (PSUF 20.) The camp was organized and planned by Defendants Chris Imperatrice, head football coach at LHS, and Carl Scudder, head football coach at GHS. (PSUF 35.) GHS and LHS football players and coaches participated in a similar camp in the summers of 2004 and 2005. (PSUF 36.) There were no reported incidents of hazing or sexual harassment in 2004 or 2005.

Approximately 60 GHS players attended the 2006 football camp, which was a designated "Play Day" event under California Interscholastic Federation ("CIF") rules.4 (PSUF 39-40.) Attendance at the football camp was voluntary and players did not receive school credit for their attendance.5 (DSUF 4-5; Scudder SUF 3-4.) GHS students were transported to and from the Camp by two buses that were owned and operated by GUSD. (PSUF 51, 63.) Use of the buses and participation in the camp was requested in advance by Scudder and approved by Dennis Shaw, the Principal of GHS. (PSUF 52.)

The only requirements for students to be eligible to participate in the camp were 1) that the students (or their parents) sign a Liability Waiver for LHS, 2) that they pay $25 or receive a hardship waiver, and 3) that they attend 40 hours of football practice prior to the camp. (PSUF 44-45.) It is undisputed that Plaintiff signed the waiver, paid the fee, and attended the required 40 hours of practice prior to July 13, 2006.6

The GHS players and coaches slept in the LHS gym Thursday and Friday nights, while the LHS players left campus each night after camp activities. During the Camp, all coaches for GHS and LHS were responsible for supervising the students while on the field and during combined activities. (PSUF 40-43.) The four GHS coaches were responsible for supervising the 60 GHS students while off the field, during break, meal and rest periods, and overnight while in the gym.7 (PSUF 41-42.) No other adults were charged with supervising the GHS students during the camp. (PSUF 42.)

C. Hazing Incidents

1. The Air Pump Incident

On the second day of camp, Plaintiff was assaulted by a group of GHS upperclassmen, Kelly Simmons, Michael Simmons, Matthew McKimmie, and Tommy San Felippo. The group chased Plaintiff into the LHS locker room, held him down, and then inserted a battery-controlled air pump into his rectum. (Pl. Dep. 188:11-191:10.) The group then activated the pump, inserting air into Plaintiff's rectum for a few seconds. (Id. 194:25-196:3.) According to Plaintiff, the attack occurred in the presence of several LHS students, who did not end the assault. (Id. 196:4-196:22.) Plaintiff also witnessed these individuals assault several other teammates with the air pump during the football camp. (Id. 179:4:181:11.)

It is undisputed that Kelly Simmons, Michael Simmons, Matthew McKimmie, and Tommy San Felippo assaulted or attempted to assault with an air hose approximately fifteen players during the July 2006 football camp.

2. The Shower Incident

On the second day of camp, following the assault, Plaintiff took a shower in the boys' locker room. (Id. 204:12-204:22.) While Plaintiff was in the shower, San Felippo, without any clothes on, entered the shower area and proceeded towards Plaintiff, who was in the corner of the shower area. San Felippo grabbed Plaintiff's shoulders from behind and Plaintiff pushed him away. (Id. 206:3-207:6.) According to Plaintiff, San Felippo, in an effeminate tone, called Plaintiff a homosexual and grabbed his buttocks. (Id. 207:13-209:12.) San Felippo then left the shower area. (Id.)

3. The Pillow Fight

On the second night of camp, the players engaged in a pillow fight. Based on the record, the pillow fight was a yearly ritual, with no prior incidents of abuse or violence. Coach Scudder approved of the pillow fight and several of the coaches were present in the gym for the pillow fight.

According to Plaintiff, the pillow cases were filled with baby powder, football equipment, and other heavy objects. (PSUF 73...

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