Doe ex rel. Doe v. City of Roseville

296 F.3d 431, 2002 WL 1540208
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 16, 2002
DocketNo. 01-1385
StatusPublished
Cited by27 cases

This text of 296 F.3d 431 (Doe ex rel. Doe v. City of Roseville) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe ex rel. Doe v. City of Roseville, 296 F.3d 431, 2002 WL 1540208 (6th Cir. 2002).

Opinion

OPINION

BATCHELDER, Circuit Judge.

Defendants Betty Slinde, Frank Mayer, Leroy Herron, John Kment and Dorothea Sue Silavs, appeal the district court’s order denying them summary judgment on qualified immunity grounds on the claims against them in their individual capacities under 42 U.S.C. § 1983. Those claims allege that these individual defendants deprived Jane Doe, a minor, of her constitutional right to be free from sexual abuse at the hands of a public school teacher. Because we conclude that, as to these individual defendants, Jane has not alleged the violation of an actual constitutional right, we will reverse the district court’s judgment.

PROCEDURAL HISTORY

In 1999, the plaintiff, Sally Doe (“Sally”), as Next Friend of Jane Doe (“Jane”), a minor, filed this action on behalf of Jane against the Roseville Community Schools and a number of individuals in both their official and individual capacities, raising claims under 42 U.S.C. § 1983, Title IX, 20 U.S.C. § 1681(a), and various state laws for the alleged sexual abuse of Jane during 1992 and 1993. The defendants include Betty Slinde, who retired in 1986 from her position as principal of Fountain Elementary School in the Roseville School District; Frank Mayer, who retired from his position as Superintendent of the Roseville Schools sometime after 1988 and before 1992; Leroy Herron, former Assistant Superintendent of Roseville Community Schools who retired after 1988 but before [434]*4341992; Dorothea Sue Silavs, Roseville’s Director of Special Education at the time of the alleged sexual abuse; John Kment, Superintendent of Roseville Community Schools during the alleged abuse; and John. Lomnicki, Jane Doe’s Chapter I reading teacher.

As we understand the complaint, Jane claims that defendant Lomnicki had a history of sexually molesting his students, and that school officials both failed to take action against Lomnicki and attempted to cover-up his history; that Lomnicki sexually molested Jane during 1992 and 1993; and that the defendants’ actions and failures to act violated Jane’s constitutional and statutory rights.

After extensive discovery had been conducted, the defendants — other than Lomnicki — moved for summary judgment on the § 1983 and Title IX claims.1 The district court heard oral argument and denied the motion. Before us on appeal is the district court’s denial of summary judgment on qualified immunity grounds to defendants Slinde, Mayer, Herron, Silavs and Kment.

STATEMENT OF FACTS

Lomnicki was hired as a Fountain Elementary School teacher by Roseville Community Schools in 1960. Although there is evidence that Lomnicki repeatedly molested a young male student in the mid-sixties, the Appellee does not claim that the school district was ever .made aware of this conduct. The misconduct material to this appeal began in the mid-seventies.

Beginning with the 1975-76 school year, several fourth- and fifth-grade girls complained that Lomnicki had touched their legs when they were wearing dresses and put his hand down the back of their pants and up their dresses. According to one of the girls, when her father discussed the situation with then-principal Slinde, Slinde told him that “she did not see how it could be possible.” Slinde testified that she spoke with Lomnicki and warned him to be very careful not to touch any children inappropriately, but she did not follow up with that particular parent, she did not document the incident or report it to anyone, and on her retirement, she destroyed all of her files, including any contemporaneous notes she might have made regarding this incident.

The following year, several fourth-grade girls alleged that Lomnicki had put his hands up their shirts and dresses, touched their buttocks, rubbed their backs, and made them sit on his lap during school in front of other children. One of these girls testified that Slinde had questioned each of them and told them that “she didn’t want to hear anymore talk about it [Lomnicki’s touching] and that [they] weren’t to talk about it to anyone, not to tell [their] parents and if [they] continued to talk about it, then Mr. Lomnicki would get in a lot of trouble, go to jail and die there.”

Other incidents involved two fifth-grade girls, one of whom was in a classroom alone when Lomnicki came in behind her, put pieces of candy in her mouth and in each of her hands and then pulled her shirt tight and made comments about how her breasts had grown. The second girl alleged that Lomnicki had on several occasions grabbed the inside part of her leg, stuck his hand down her top all the way to her pants and rubbed her vaginal area, and picked her up by the waist, spit the gum he had been chewing into her mouth, and stuck his tongue into her mouth to obtain her gum. It does not appear from [435]*435the statements and testimony of these two girls that they reported these incidents to anyone. It is undisputed, however, that Slinde did not relay the complaints that were reported to her to anyone in the administration of the school district, nor did she discipline Lomnicki in any way.

Sometime after these incidents, Lomnicki was transferred to Kaiser Elementary School, but the school was not notified of the verbal warning given to him by Slinde. In 1979, Superintendent Mayer was advised that Lomnicki had fondled the breasts of four sixth-grade girls. Mayer investigated the matter and concluded that Lomnicki exercised “poor judgment.” Mayer placed a written reprimand — in a sealed envelope — in Lomnicki’s personnel file admonishing him and reminding him that “you are not to straighten clothing or pick up jewelry from beneath a sweater or blouse or to touch students in a way which could be misinterpreted by them or their parents.” Lomnicki was warned that “[fluture instances of poor judgment on your part may result in more severe disciplinary action up to and including discharge.”

Following this incident, Lomnicki was transferred to Arbor Elementary School, where he was assigned to a federally funded remedial reading program (“Chapter I”), in which he taught individual students, one at a time, in a private classroom. The officials at this school were not told of either the warning by Slinde or the written reprimand from Mayer. There were no reported incidents at Arbor Elementary School until nine years later when, in 1988, several sixth-grade girls reported to the school’s principal that Lomnicki had been hugging them in front of other students, giving them back rubs, placing his hands in their pockets, and forcibly holding their hands between his. The principal reported the allegations to Assistant Superintendent Leroy Herron and Superintendent Mayer. Herron investigated the matter and placed a written reprimand — again in a sealed envelope — in Lomnicki’s file, classifying the incident as “poor judgment” and warning Lomnicki that he was not to hug or put his hands on students in a manner that may be misconstrued by the students or their parents. Because some of the girls were giggling when Herron confronted them and did not give concrete answers to his questions, and because Lomnicki had plausible explanations for all of his conduct, Herron did not think that there was enough evidence for this incident to be considered child abuse.

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Cite This Page — Counsel Stack

Bluebook (online)
296 F.3d 431, 2002 WL 1540208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-ex-rel-doe-v-city-of-roseville-ca6-2002.