Brown v. Arizona, State of

• Court: District Court, D. Arizona
• Decided: March 11, 2020
• Docket: 2:17-cv-03536
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mackenzie Brown, No. CV-17-03536-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 State of Arizona, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants State of Arizona, et al. (“Defendants”)’ 16 Motion for Summary Judgment, (Doc. 193), and Motion to Strike Notice, (Doc. 203). The 17 Motion for Summary Judgment is granted and the Motion to Strike is denied as moot. 18 BACKGROUND 19 Plaintiff Mackenzie Brown (“Plaintiff”) enrolled as a University of Arizona 20 (“University”) freshman in the fall of 2015. In approximately February 2016, Plaintiff 21 began dating Orlando Bradford, a fellow freshman and University football player. 22 Plaintiff’s relationship with Bradford became violent during the summer of 2016; Plaintiff 23 testified that “little things” could incite Bradford’s anger, such as changing the appearance 24 of his name in her phone. Plaintiff asserts that Bradford assaulted her approximately ten 25 times over the course of the summer, but her memory of the assaults is poor, and she 26 testified to only vague details of two of the assaults. 27 The first of the assaults about which Plaintiff testified occurred around August 2016, 28 after Bradford sent Plaintiff threatening text messages while she was out of town. She 1 showed the texts to her mother who warned Bradford to stay away from her daughter. 2 Neither Plaintiff nor her mother reported the threats to the University or the police, and 3 Plaintiff continued seeing Bradford against her mother’s instruction. Shortly thereafter, 4 Bradford and Plaintiff were arguing when he hit her and blackened her eye. She does not 5 remember what the argument was about and did not testify as to where it occurred. The 6 second assault that Plaintiff recalled also happened in August 2016 at a Goodyear Tire 7 store, when Bradford became angry at seeing another man’s name in her cell phone. He 8 grabbed her arm and dug his nails in, leaving a wound. Plaintiff did not report either of 9 these two assaults to the University, the police, her mother, or anyone else because she did 10 not want Bradford to get in trouble. 11 On September 12, 2016, Plaintiff went to Bradford’s off-campus house after work. 12 Following an argument about whether Plaintiff had scratched Bradford’s car, Bradford 13 refused to let her leave and assaulted her repeatedly over the course of the evening. The 14 following day, Plaintiff again went to Bradford’s house after work. Like the night before, 15 Bradford became angry over a trivial issue—Plaintiff’s refusal to eat a Wendy’s milkshake. 16 Bradford again assaulted Plaintiff repeatedly over the course of the evening, and again 17 Plaintiff spent the night at Bradford’s house. 18 The University was not made aware of Bradford’s assaults against Plaintiff until 19 September 14, 2016, when Plaintiff informed her mother, who called the University athletic 20 director.1 Nor does Plaintiff allege that any of the assaults occurred on campus or in another 21 location under University control. Plaintiff’s claims in this case instead arise out of the 22 University’s knowledge of Bradford’s abuse of two other female students with whom he 23 was romantically involved during the 2015-2016 school year—Student A and Lida 24 DeGroote.2 Defendants do not dispute that they knew about Bradford’s abuse of Student A 25

26 1 Plaintiff’s mother also called the police, who arrested Bradford later that day. Bradford ultimately pled guilty to two counts of felony aggravated assault and domestic violence 27 and was sentenced to five years in prison.

28 2 Student A is not a party to this action. Lida DeGroote is the plaintiff in the related action, DeGroote v. Arizona Board of Regents., No. 2:18-cv-00310-SRB. 1 and Ms. DeGroote to varying degrees.3 2 On September 13, 2017, Plaintiff filed a complaint in Maricopa County Superior 3 Court alleging (1) a violation of Title IX, (2) intentional infliction of emotional distress, 4 and (3) negligence. The case was removed to this Court on October 5, 2017. An amended 5 complaint was filed on February 23, 2018 alleging the same claims. Counts Two and Three 6 were dismissed pursuant to a stipulated motion to dismiss on September 13, 2019. On 7 November 8, 2019, Defendants filed this motion for summary judgment on the remaining 8 Title IX claim. 9 DISCUSSION 10 I. Legal Standard 11 The purpose of summary judgment is “to isolate and dispose of factually 12 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary 13 judgment is appropriate if the evidence, viewed in the light most favorable to the 14 nonmoving party, shows “that there is no genuine issue as to any material fact and that the 15 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only disputes 16 over facts that might affect the outcome of the suit will preclude the entry of summary 17 judgment, and the disputed evidence must be “such that a reasonable jury could return a 18 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 19 (1986). 20 “[A] party seeking summary judgment always bears the initial responsibility of 21 informing the district court of the basis for its motion and identifying those portions of [the 22 3 On or about March 22, 2016, Student A’s softball teammates met with Erika Barnes, the 23 University’s Executive Senior Associate Athletics Director and Title IX Liaison, and told her, among other things, that: they thought Student A was seeing Bradford again (despite 24 Student A telling her mother, and her mother conveying to the University, that Student A and Bradford had broken up at the end of December 2015); they had seen Student A and 25 Bradford yelling and fighting in their dorm during the fall of 2015; Bradford had admitted to hitting Student A in November 2015; he had within the past week threatened to “f her 26 up/hit her”; he had choked Student A the previous semester; Student A currently had scratches on the side of her face as well as a black eye; Bradford had threatened to send 27 compromising photos to Student A’s family; Bradford was in a relationship with a woman named “Lida” and, according to Lida’s friends, he “hits her often”; Bradford had abused 28 Lida’s dog and distributed a sex video of her; and Bradford’s friend from home reported that Bradford had a violent past and was not afraid to hurt people. (Doc. 194-11 at 102.) 1 record] which it believes demonstrate the absence of a genuine issue of material fact.” 2 Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 3 particular parts of materials in the record” establishing a genuine dispute or “show[] that 4 the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 5 56(c)(1). A district court has no independent duty “to scour the record in search of a 6 genuine issue of triable fact[.]” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 7 II. Analysis 8 Title IX applies to student-to-student gender-based harassment through an implied 9 private right of action that includes the possibility of money damages. Davis ex rel 10 LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640 (1999). However, “private 11 damages actions are available only where recipients of federal funding had adequate notice 12 that they could be liable for the conduct at issue”—conduct limited to “only . . . [their] own 13 misconduct.” Id. (emphasis added). To state a prima facie Title IX case for student-to- 14 student harassment, a plaintiff must prove that (1) the defendant had actual knowledge of 15 the harassment; (2) the defendant was “deliberately indifferent” to the harassment such that 16 its indifference “cause[d] students to undergo harassment or ma[d]e them liable or 17 vulnerable to it”; (3) the plaintiff suffered harassment so severe, pervasive, and objectively 18 offensive that it “deprive[d them] of access to the educational opportunities or benefits 19 provided by the school”; (4) and the defendant exercised substantial control over both the 20 harasser and the context in which the harassment occurred. Reese v. Jefferson Sch. Dist. 21 No. 14J, 208 F.3d 736, 739 (9th Cir. 2000) (quoting Davis, 526 U.S. at 650). 22 As Defendants concede, “the University exercised a certain amount of control over 23 Bradford because he was subject to the student Code of Conduct and other regulations.” 24 (Doc. 193 at 20.) But to be held liable under Title IX, Defendants must exercise “substantial 25 control over both the harasser and the context in which the known harassment occurs.” Doe 26 v. Round Valley Unified Sch. Dist., 873 F. Supp. 2d 1124, 1136 (D. Ariz. 2012) (emphasis 27 added) (quoting Davis, 526 U.S. at 645) (finding that the defendant school did not exercise 28 substantial control over the “context” of the alleged sexual harassment because “[a]ll of it 1 took place off campus”); see also Samuelson v. Oregon State Univ., 162 F. Supp. 3d 1123, 2 1131–32 (D. Or. 2016), aff’d, 725 F. App’x 598 (9th Cir. 2018) (“Here, Ms. Samuelson’s 3 harasser drugged Ms. Samuelson at an off-campus party. OSU had no control over an off- 4 campus party at an apartment that simply happened to be located in the same city as the 5 university.”). 6 Plaintiff does not allege that any of her assaults occurred on campus or at another 7 location under University control. Instead, Plaintiff bases her claim on Defendants’ 8 knowledge of Bradford’s abuse of Student A and Ms. DeGroote. But when a plaintiff 9 asserts that a defendant’s “knowledge of a prior report of [harassment]” is the source of 10 liability in her case, the plaintiff must also “allege how [the defendant] exercised any 11 control over the environment of her [harassment].” Samuelson v. Oregon State Univ., 725 12 F. App’x 598, 599 (9th Cir. 2018) (emphasis added). Imposing liability with a lesser 13 showing would collapse the two prongs of the Davis test for substantial control into one— 14 control over the harasser—without accounting for control over the context of the 15 harassment. 16 Plaintiff argues that because Davis specifies that a defendant must exercise control 17 over “the harasser and the context in which the known harassment occurs,” Davis, 526 U.S. 18 at 645 (emphasis added), she need only prove that Defendants exercised control over the 19 context of Bradford’s harassment of Student A and Ms. DeGroote and not the context of 20 her own harassment, since Defendants “knew” of that harassment in March 2016. In the 21 context of Davis, however, the word “known” limits liability for Title IX defendants to 22 harassment of which they had “actual knowledge”—another element in Davis’s four-factor 23 test for Title IX liability. Contrary to Plaintiff’s interpretation, there is no indication that 24 the Davis court instead intended to expand liability to cover plaintiffs about whom a 25 defendant had no knowledge by requiring that those plaintiffs prove only “control over . . . 26 the harasser” and not control over the “context” of their own harassment. Id. 27 In L.E. v. Lakeland Joint School District #272, 403 F. Supp. 3d 888 (D. Idaho 2019), 28 a former student brought claims against his school district under Title IX after he was 1 sexually assaulted at an off-campus sports camp. “The true nature of [the plaintiff’s] Title 2 IX claim is that he was subjected to a hostile learning environment due to continued 3 harassment at school, even though [his coach] knew that he had been sexually assaulted by 4 fellow students the prior summer.” Id. at 900 (emphasis added). “Thus,” the court noted, 5 “the [defendant school district’s] focus on whether it exercised substantial control over the 6 Camp is somewhat misplaced,” because the defendant “undoubtedly had control over its 7 students during the school year and over the allegedly hostile environment that [the 8 plaintiff] endured at the school.” Id. See also Roe ex rel. Callahan v. Gustine Unified Sch. 9 Dist., 678 F. Supp. 2d 1008, 1025 (E.D. Cal. 2009) (denying summary judgment as to the 10 “substantial control” inquiry in a Title IX case involving abuse at an off-campus summer 11 camp because “it is undisputed . . . that the football camp was sponsored and promoted by 12 [the defendant], its football coaches and administrators, was a core part of [the defendant’s] 13 football program, and was under the supervision of [the defendant’s] teachers and/or 14 football coaches. . . . the players were transported . . . [by the defendant’s] buses,” and the 15 camp was governed by an administrative directive from the defendant). 16 Unlike in Lakeland or Callahan, Plaintiff does not allege that any of her abuse 17 occurred on campus or in any other setting under Defendants’ control. While it is 18 undeniable that Defendants exercised substantial control over Bradford, Plaintiff has not 19 offered any evidence that Defendants exercised control over the context in which her abuse 20 occurred. Defendants therefore cannot be liable for Plaintiff’s harassment under Title IX. 21 CONCLUSION 22 Plaintiff has failed to demonstrate that Defendants exercised sufficient control over 23 the context in which her harassment arose. “The insufficient showing on any one element 24 is enough to support judgment in [Defendants’] favor.” Karasek v. Regents of Univ. of 25 California, No. 3:15-CV-03717-WHO, 2018 WL 1763289, at *14 (N.D. Cal. Apr. 12, 26 2018), aff’d sub nom. Karasek v. Regents of the Univ. of California, No. 18-15841, 2020 27 WL 486786 (9th Cir. Jan. 30, 2020). 28 / / / 1 IT IS THEREFORE ORDERED that Defendants’ Motion for Summary 2|| Judgment, (Doc. 193), is GRANTED. 3 IT IS FURTHER ORDERED that Defendants’ Motion to Strike Notice, (Doc. 4|| 203), is DENIED as moot. 5 IT IS FURTHER ORDERED that the Clerk of Court is directed to terminate this 6 || case and enter judgment accordingly. 7 Dated this 11th day of March, 2020. Wars ) 9 A Whacrsay Sooo) 10 Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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