Barnett v. Clark County School District

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 UNIQUE BARNETT, et al., Case No.: 2:21-cv-00218-APG-VCF

4 Plaintiffs Order on Supplemental Briefing

5 v.

6 CLARK COUNTY SCHOOL DISTRICT, et al., 7 Defendants 8

9 The plaintiffs are minor children who allege they were physically abused by former Clark 10 County School District (CCSD) teacher Shane Butuyan while attending Thiriot Elementary 11 School. They sue CCSD, principal Sonya Holdsworth, assistant principal Renee Mechem, and 12 special education aide Ana Escamilla. They also sued Butuyan, but I dismissed the claims 13 against him because the plaintiffs failed to timely serve him. ECF No. 37. 14 I granted in part and denied in part the defendants’ motion for summary judgment on 15 numerous grounds. ECF No. 87. As part of that ruling, I directed the parties to file supplemental 16 summary judgment briefs on two issues: (1) whether CCSD can be vicariously liable under Title 17 II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act, and 18 (2) whether a genuine issue remains regarding the plaintiffs’ negligence claims against 19 Holdsworth, Mechem, and CCSD based on Holdsworth and Mechem failing to inform the 20 plaintiffs’ caretakers of the plaintiffs’ specific allegations of physical abuse. Id. at 28-29. The 21 parties filed supplemental briefs on both issues. ECF Nos. 90; 91; 95; 96. I grant summary 22 judgment in the defendants’ favor on the ADA, Rehabilitation Act, and negligence claims that 23 were subject to supplemental briefing. 1 I. ADA and Rehabilitation Act 2 I set forth my reasoning in my prior order as to why the plaintiffs’ ADA and 3 Rehabilitation Act claims fail. ECF No. 87 at 16-20. However, I gave the plaintiffs an 4 opportunity to persuade me otherwise in supplemental briefing. Id. at 16-20, 28-29. I have 5 considered the plaintiffs’ arguments and authorities in their supplemental brief, but I remain

6 convinced that there is no vicarious liability under the ADA and Rehabilitation Act under the 7 Supreme Court’s decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274 8 (1998) and the related cases I discussed in my prior order. None of the cases the plaintiffs rely 9 on reconcile themselves with Gebser. Additionally, the plaintiffs’ attempt to limit United States 10 v. County of Maricopa, Arizona to a case about policymaker liability ignores that case’s 11 language. In that published case, the Ninth Circuit stated that under Title VI, “an entity cannot 12 be held vicariously liable on a respondeat superior theory.” 889 F.3d 648, 652 (9th Cir. 2018). 13 In doing so, it relied on Supreme Court authority, including Gebser. Id. As I discussed in my 14 prior order, the remedies for a Title VI violation are the same as the remedies for violations of

15 Title II of the ADA and section 504 of the Rehabilitation Act. See ECF No. 87 at 18-20. 16 Consequently, if there is no vicarious liability under Title VI, there is no vicarious liability under 17 the ADA and Rehabilitation Act either. I grant summary judgment in CCSD’s favor on the 18 plaintiffs’ ADA and Rehabilitation Act claims because there is no vicarious liability under those 19 Acts. 20 II. Negligence 21 In my prior order, I noted that the defendants’ summary judgment motion did not address 22 the amended complaint’s allegation that Holdsworth and Mechem negligently failed to inform 23 1 the plaintiffs’ caretakers that the plaintiffs were stating that Butuyan had struck them with a 2 ruler. Id. at 25-26. I granted the parties leave to address this claim in their supplemental briefs. 3 To prevail on a negligence claim, the plaintiffs must show that (1) the defendants owed 4 them a duty of care, (2) the defendants breached that duty, (3) the breach caused the plaintiffs’ 5 injuries, and (4) the plaintiffs suffered damages as a result. Foster v. Costco Wholesale Corp.,

6 291 P.3d 150, 153 (Nev. 2012). “[W]hether a defendant was negligent is generally a question of 7 fact for the jury to resolve,” but “summary judgment is proper when the plaintiff cannot recover 8 as a matter of law.” Id. 9 The defendants argue that they have a duty of ordinary care to inform parents of 10 foreseeable harm posed to the student at school. But they argue that they did not breach that 11 duty because the foreseeable harm was negated once Butuyan was removed from the classroom. 12 They assert that it was not foreseeable that the plaintiffs would suffer harm from their caretakers 13 failing to obtain medical treatment for the plaintiffs earlier if the caretakers had been informed 14 about the abuse allegations earlier. Alternatively, the defendants argue that there is no evidence

15 of causation or damages because the caretakers learned of the abuse shortly after Butuyan was 16 removed from the classroom through other sources (such as the plaintiffs and Child Protective 17 Services), and there is no evidence that any plaintiff sought treatment once their caretakers 18 learned of the abuse. 19 The plaintiffs respond that the defendants had a duty to inform their caretakers of known 20 physical abuse suffered while the plaintiffs were in the school’s care and custody. They contend 21 that there are issues of fact as to when the caretakers learned of the abuse. And the plaintiffs 22 assert that whether they suffered damages is a question of fact for the jury. The plaintiffs argue 23 that the fact that none of them sought medical treatment after their caretakers learned of the abuse is not determinative on the damages issue. 3 I grant summary judgment in the defendants’ favor on this claim because the plaintiffs have failed to present evidence of any damages resulting from Holdsworth and Mechem failing 5] to inform the plaintiffs’ caretakers of known abuse. The plaintiffs do not point to evidence that they have ever sought or obtained treatment for the abuse even after their caretakers learned of it. Although the plaintiffs argue that medical or psychological treatment is not the only measure of 8|| damages, they do not identify any other basis for, or evidence of, damages arising from Holdsworth and Mechem’s alleged failure to timely notify the caretakers. Attorney argument 10|| that damages is a Jury question does not raise a genuine dispute for trial. See Arpin v. Santa 11|| Clara Valley Transp. Agency, 261 F.3d 912, 923 (9th Cir. 2001) (stating that “arguments of 12|/counsel . . . are not evidence and do not create issues of fact capable of defeating an otherwise 13]| valid summary judgment” (simplified)). 14) Conclusion 15 I THEREFORE ORDER that the defendants’ motion for summary judgment (ECF No. 16|| 69) is GRANTED in part. The following claims remain pending for trial: 17 1. Battery against Clark County School District based on Shane Butuyan’s conduct; 18 2. Intentional infliction of emotional distress against Clark County School District based 19 on Shane Butuyan’s conduct; and 20 3. Negligence against Ana Escamilla and against Clark County School District based on Ana Escamilla and Shane Butuyan’s conduct. 22 DATED this 16th day of November, 2023. (IER 23 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE