Walsh v. Tehachapi Unified Sch. Dist.

Decision Date04 February 2014
Docket NumberCase No. 1:11–cv–01489 LJO JLT.
Citation997 F.Supp.2d 1071
CourtU.S. District Court — Eastern District of California
PartiesWendy WALSH, et al., Plaintiffs, v. TEHACHAPI UNIFIED SCHOOL DISTRICT, et al., Defendants.


Daniel Rodriguez, Charles R. Chapman, Joel T. Andreesen, Rodriguez & Associates, John Alan Kawai, Rodriguez & Associates, P.C., Bakersfield, CA, for Plaintiffs.

Daniel Phillip Barer, Pollak, Vida & Fisher, Los Angeles, CA, Michael Charles Kellar, Robinson & Kellar, Bakersfield, CA, for Defendants.


LAWRENCE J. O'NEILL, District Judge.

Now before the Court is Defendants Tehachapi Unified School District (“the School District), Susan Ortega (“Ms. Ortega”), and Paul Kaminski's (“Mr. Kaminski's”) (collectively “Defendants' ”) motion for partial summary judgment. Plaintiff Wendy Walsh (Plaintiff) has filed an opposition to the motion, and Defendants have filed a reply. The parties have also filed supplemental briefing upon the Court's request. Having considered the parties' submissions and the entire record in this case, the Court DENIES Defendants' motion for partial summary judgment.

I. BACKGROUNDA. Factual Background

This case concerns the apparent suicide of a 13–year–old boy (“Decedent”) in September 2010. Plaintiff, the mother and successor in interest of Decedent, maintains that Decedent committed suicide because he was harassed and bullied at school from sixth to eighth grade for being gay. The following facts regarding this matter are undisputed for the purposes of this motion.

1. Sixth Grade

In early 2009, during Decedent's sixth grade year, a school counselor called Decedent into her office and asked if he had told a friend that he wanted to kill himself. Decedent did not appear to be upset, spoke matter-of-factly, and indicated that he was just joking. Decedent explained that he made those comments to his friend because he had recently told his mother and brother that he was gay and they were mad and upset with him. The counselor told Decedent that he should give his mother and brother some time. When the counselor met with Decedent three weeks later in a follow-up meeting, Decedent indicated that things at home were going better. The counselor did not hear any reports that Decedent had thoughts of suicide thereafter.

2. Seventh Grade

During Decedent's seventh grade year, Decedent's friends K.B. and M.W. observed him to be funny and bubbly, and not negative or sad, although he appeared to be less happy than he was during his sixth grade year. At home, Plaintiff observed Decedent to be happy, bubbly, fun, laughing, and a joy to be around. Plaintiff did think that Decedent's bullying was taking a mental toll on him, but she did not think that the bullying was making him depressed or suicidal. When Plaintiff asked Decedent if he wanted to see a counselor, he replied no.

In the summer following Decedent's seventh grade year, a period lasting from approximately June 2010 to August 2010, Plaintiff observed Decedent to be generally happy and positive. M.W. also observed Decedent to be happy and positive; he was fun, laughed, and wanted to do things. Decedent told his friend P.J. that he was “happy with his life at the moment.” But the summer was not entirely carefree. During the first part of summer, Decedent's friends M.W. and Amanda Alford noticed that Decedent had some romantic relationship issues that made him sad or angry sometimes. Another one of Decedent'sfriends, Raven Williams, noticed that Decedent would momentarily become quiet when upset about being bullied at school or upon hearing an anti-gay slur, but would quickly become happy again and laugh.

M.W. noticed that Decedent became more negative in late August 2010. One afternoon in late summer, M.W. said to Decedent while they were at church, “Hey, from what I hear—well, I've heard you talk about, it seems like bullying is pretty hard on you.” M.W. continued, “Have you ever thought about killing yourself?” Decedent responded, “Once or twice, but I think it's stupid.” Decedent told M.W. that he had thought of hanging himself in the closet. M.W. replied, “Oh, okay. That's not very cool.” Nevertheless, from the way Decedent acted during this conversation (he had a positive outlook, was smiling, and was joking about the matter as if he had grown out of it), M.W. figured it was safe to say that Decedent was not going to commit suicide.

3. Eighth Grade

When Decedent started eighth grade, he generally appeared happy to his family and friends, although one friend observed that he did not laugh as much. He did tell his sister Amanda about two incidents of harassment and bullying at school. On one occasion, Decedent told his sister that he was called a gay slur. Amanda could tell that this hurt his feelings for about five minutes, but thereafter he appeared happy and the two were joking. On another occasion, Decedent told his sister that a student had destroyed his headphones, which made him “really mad.” According to Amanda, however, after the Decedent's anger was momentary.

On September 1, 2010, Plaintiff took Decedent out of school due to bullying concerns and had him put on independent study. Decedent's sister, Amanda, spent time with Decedent while he was on independent study, and he appeared to be happy. Decedent told his friend P.J. that he preferred being homeschooled.

4. The Days Just Before the Suicide

On Thursday, September 16, 2010, Decedent spent the afternoon with some friends at a park. One of Decedent's friends, Amanda Alford, recalled Decedent being his normal self: happy, laughing, and making jokes. In the evening of Friday, September 17, 2010, Decedent attended a football game with his friends Amanda Alford and Raven Williams. Decedent then spent the night with some of his friends at Amanda Alford's house. They watched Disney movies, ate junk food, talked, and stayed up until 3:00 a.m. According to several friends, Decedent was laughing, making jokes, and seemed to be in good spirits that entire night.

The next morning, Decedent ate pancakes and played video games with his friends. M.W. had asked Decedent out the night before, but the two “broke-up” via text message. Nevertheless, Decedent appeared to be happy and was laughing and having fun. Later that day, Decedent went to the mall and the park with his friends. He then spent the night at Amanda Alford's house, where they played pool, ate junk food, and listened to music.

5. The Day of the Suicide

On Sunday, September 19, 2010, Decedent and his friends woke up at 11:00 a.m. at Amanda Alford's home. They ate and played video games. Decedent appeared to be sleepy but happy; he was laughing and making jokes. When Decedent left Amanda's house with Raven Williams later that day, he was frustrated that Plaintiff had declined to give him a ride home, but he otherwise appeared to be normal and happy.

On their way home, Decedent and Raven stopped at a local park. There, some teenagers harassed Decedent for about 30 minutes. Decedent called Plaintiff from the park and asked her to pick him up since some boys were trying to beat him up. Decedent was not crying, and Plaintiff thought he was joking. She declined to pick him up. However, five minutes later Decedent called Plaintiff again and this time he was panicking and his tone conveyed that he was serious. Plaintiff drove to the park, and when she arrived, she had words with the youths who appeared to have been harassing Decedent. Decedent was not crying, his clothes were not disheveled, and he showed no apparent signs of having been battered. Decedent got into Plaintiff's truck. Plaintiff asked him if he wanted to call the police. Decedent replied, “I don't care.” Plaintiff asked if he was okay. Decedent responded that he was all right. When they arrived home, Decedent declined to talk with Plaintiff about the matter and the two pursued activities in different parts of the house.

Over the next hour or so, Decedent exchanged approximately 36 text messages with Joshua Delarosa, an older gay teenager with whom Decedent had communicated via MySpace, telephone, and text for the last year. In one of his texts to Joshua, Decedent wrote, “Well. I think im [sic] going to kill myself.” Decedent also texted, “You dont [sic] love me. You love vince [sic]. Im [sic] going to go. Bye.” (In some prior conversation, Joshua told Decedent that he loved Vince.) Joshua responded, “I just didnt [sic] want you to keep trying to get at me. So i [sic] offered sex. But i [sic] do love you[.] Decedent replied, “I wont [sic] be texting for long so just text me.” And, “I love you. And i [sic] hope i [sic] become the universe.” Joshua understood from the texts that Decedent was indicating his intent to commit suicide. He sent Decedent several texts urging him not to do so.

Decedent also exchanged approximately 20 text messages and two brief phone calls with M.W. over the span of 20–30 minutes. Decedent texted, among other things, “I want all my stuff when this happenes [sic]. Promise me you wont [sic] cry. And take care of my ipod.” He also texted, “Please dont [sic] ask puestions [sic]. I want it to be painless for me and you and everyone.” While speaking on the phone with M.W., Decedent cried hysterically. At some point, M.W. accidentally hung up on Decedent or lost service. When she eventually was able to call him again, she told him to meet her at the church in 20 minutes. Decedent agreed. During the second conversation, Decedent was not crying as bad as before.

Decedent wrote two suicide notes. One note included the phone numbers of certain friends and read: “Please tell; [S.A.]; I love her [M.W.]; I Love her[.] Raven + Amanda: I love them. Yourself: I love you. Joshua; I was serious + I love him[.] Everyone else—burn in Hell.” Decedent's other note read, in full:

Mom; Amanda; Shane; [Sh. W.] I love you. Thank you for having me. It's been a pleasure. I know this will bring much pain. But, I...

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