Soper v. Hoben, Et Al

• Decision Date: 23 April 1999
• Docket Number: No. 98-1550,98-1550
• Citation: 195 F.3d 845
• Parties: (6th Cir. 1999) Renee Soper, a minor, by her mother and next friend, Lina Soper; Lina Soper, individually, Plaintiffs-Appellants, v. Christine A. Hoben; Michelle Harmala; Robert Shaw; James H. Doyle; Huron Valley School District; Board of Education of the Huron Valley School District, jointly and severally, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 845

195 F.3d 845 (6th Cir. 1999)

Renee Soper, a minor, by her mother and next friend, Lina Soper; Lina Soper, individually, Plaintiffs-Appellants, v. Christine A. Hoben; Michelle Harmala; Robert Shaw; James H. Doyle; Huron Valley School District; Board of Education of the Huron Valley School District, jointly and severally, Defendants-Appellees.

No. 98-1550

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 23, 1999

Decided and Filed: November 2, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Detroit; No. 96-72227--Robert E. DeMascio, District Judge. [Copyrighted Material Omitted] Charles Y. Cooper, COOPER, SHIFMAN, GABE, QUINN & SEYMOUR, Royal Oak, Michigan, for Appellants.

Noreen L. Slank, Collins, Einhorn, Farrell & Ulanoff, Southfield, MI, Richard E. Kroopnick, Pollard & Albertson, Bloomfield Hills, MI, Elizabeth M. Malone, DISE & ASSOCIATES, Southfield, Michigan, for Appellees.

Before: KENNEDY, SILER, and MOORE, Circuit Judges.

SILER, J., delivered the opinion of the court, in which KENNEDY, J., joined. MOORE, J. (pp. ---), delivered a separate opinion concurring in part and dissenting in part.

OPINION

SILER, Circuit Judge.

Plaintiffs, Renee Soper, a minor, by her mother and next friend, Lina Soper, and Lina Soper, individually, appeal the district court's grant of summary judgment to defendants in this action for negligence and gross negligence under state law, violations of 42 U.S.C. § 1983, and violations of 20 U.S.C. § 1681. For the following reasons, this court AFFIRMS.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case involves the harassment, sexual molestation, and rape of a female special education student by three of her classmates at school and on the bus. The crux of the case is who, if anyone, may be held liable for Renee's injuries under federal or state law.

Factual Background

Renee is a mentally retarded adopted foster child. Because of her learning disability, Renee attended special education or "educable mentally impaired" ("EMI") ¹ classes starting in the second grade at Oxbow Elementary of the Huron Valley Public Schools ("HVPS"), but also attended certain mainstream classes outside the special education program, to which she would walk unattended. Each year, the school conducted an Individualized Educational Planning Committee ("IEPC") meeting, which Ms. Soper and Renee's teachers would attend to discuss Renee's educational, social, and physical needs. Additionally, psychological evaluations were performed periodically and reports issued on Renee throughout her school years.

Both Ms. Soper and Renee's teacher, Kathy Rombach, noticed that Renee engaged in frequent hugging of other adults and children while in grade school, a common characteristic of Down's Syndrome children. While the hugging was not sexual in nature, the two women worked to decrease the behavior. In 1993, while Renee was a student at Oxbow Elementary, Boy A (who is one or two years older than Renee and was then a student in defendant Michele Harmala's EMI classroom in the middle school) and Renee left the school boundaries together. Later, Renee told her mother that Boy A had kissed her and said that he could not wait for her to come to junior high. Ms. Soper reported the incident to Rombach and asked her to make sure that someone would keep an eye on Renee and Boy A so as to prevent any further incidents. Boy B and Boy C were also in Rombach's EMI class with Renee. While at Oxbow, Renee never encountered any problems with Boy B or Boy C.

At an IEPC meeting in May 1994, before Renee entered Muir Middle School, it was decided that Renee would continue in the EMI program. ² Harmala was designated as the teacher responsible for implementing Renee's IEP. The IEPC report lists Renee's cognitive level of functioning at age seven years and six months, although her chronological age was twelve years. At the May meeting, Ms. Soper contends that she discussed Renee's history of sexual abuse by her foster brother³ as well as the incident with Boy A in elementary school. In response to Ms. Soper's concerns, Ms. Soper submits that Harmala said, "we'll keep an eye on the children. They're well supervised." Harmala denies that Ms. Soper mentioned Boy A to her as a concern or that she assured Ms. Soper that Renee would be supervised at all times while she was in school. Ms. Soper did not voice any concerns about Boy B or Boy C.

Renee entered Muir Middle School in August 1994. At that time defendant Christine Hoben was the school principal; Ronald Mango was the assistant principal; defendant Robert Shaw was the Director of Special Education; and defendant James Doyle was the Superintendent of Schools. Renee was placed in Harmala's EMI classroom ⁴ with ten other students. ⁵ Boy A, Boy B, and Boy C were also in this class. Although Harmala had requested an aide because of the increasing number of students and because of the multi-station curriculum in her class, one was not provided.

At the initial meeting at the beginning of the 1994 school year, Ms. Soper expressed further concern about Boy A to Harmala. (Rombach also attended this meeting.) At the time, Ms. Soper was aware of Boy A's abusive family background, and told Harmala that she did not want her daughter left alone with Boy A. Harmala denies having heard this. Additionally, Harmala, who had taught Boy A for the two previous years, submits that she never observed any sexually aggressive behavior by Boy A toward other students in the class. Likewise, a psychological evaluation performed in May 1994 on Boy A revealed no inappropriate sexual behavior by Boy A.

On the evening of October 6, 1994, Ms. Soper met with Harmala for a scheduled parent-teacher conference and raised the following issues regarding Renee: (1) diet; (2) hygiene; (3) locker problems involving another student; (4) bra-snapping; and (5) story telling. When Ms. Soper returned home, Renee told her that Boy B and Boy C fondled her breasts and vagina at Muir Middle School in the back of the classroom while the teacher was outside in the hallway, that the boys did the same on the school bus, and that Boy A had raped her at school. As to the latter incident, she explained that her teacher allowed Boy A to accompany her to her locker to assist her in getting the door open, and that while Harmala was locking up the classroom for lunchtime, Boy A told her to hide in the back room, and that after the teacher left, he raped her. She reported that all the boys had threatened to beat her up if she told anyone. Boy A alleges that the sexual penetration was consensual and Boy B and Boy C deny any sexual misconduct.

Ms. Soper confronted Harmala and Hoben immediately and then reported the incidents to the police. The next day, Harmala reported Renee's allegations to Child Protective Services and contacted Renee's mainstream teachers to arrange for a plan of increased supervision of Renee while in school. Harmala, Hoben, Mango, and Shaw met to discuss the allegations and an immediate investigation ⁶ as well as a plan for Renee's protection while in school. They prepared a plan for increased supervision of Renee while in school, including an escort. However, Ms. Soper opted to keep Renee at home, as Boys A, B, and C were allowed to continue attending Muir Middle School during the police investigation⁷.

After the reported rape, the HVPS District implemented several remedial steps: (1) windows were installed in the doors; (2) an aide was placed in Harmala's classroom; (3) the hall pass rule was implemented; and (4) an aide accompanied students on the bus. Furthermore, Renee and Boys A, B, and C were advised to attend student counseling sessions concerning how to function socially with the opposite sex.

While the police conducted a criminal investigation they did not communicate the preliminary findings to the HVPS. In January 1995, after the school received word that Boy A would be charged, he was suspended under threat of expulsion for the remainder of the year. Boy B and Boy C were not prosecuted and therefore not disciplined by the school. Renee voluntarily returned to school in January 1995.

Procedural History

The Sopers filed their complaint in the Oakland County Circuit Court, alleging claims for negligence, gross negligence, and violations of 42 U.S.C. § 1983 and 20 U.S.C. § 1681 ("Title IX"), against Harmala, Hoben, Shaw, Doyle, the HVPS District, and the HVPS Board. Defendants removed the action to federal court. The district court granted defendants' motion for summary judgment.

STANDARD OF REVIEW

Whether a district court correctly dismissed a suit pursuant to FED. R. CIV. P. 12(b)(6) is a question of law subject to de novo review. See Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. 1995). However, if the district court considered matters outside the pleading when ruling on a motion to dismiss, this court will treat the motion as one for summary judgment pursuant to FED. R. CIV. P. 56.

This court reviews an order granting summary judgment de novo and hence uses the same test as the district court. See Harrow Prods., Inc. v. Liberty Mutual Ins. Co., 64 F.3d 1015, 1019 (6th Cir. 1995). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence offered] must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

ANALYSIS

Negligence and Gross Negligence

In response to the Sopers' state tort law claims of negligence and gross negligence, defendants Harmala,...