1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
John D oe, et al., ) No. CV-19-08163-PCT-SPL ) 9 ) 10 Plaintiffs, ) ORDER vs. ) ) 11 ) Show Low Unified School District, et ) 12 al., ) 13 ) ) 14 Defendants. )
15 Before the Court is Defendants’ Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 16 Motion to Dismiss (the “Motion”). (Doc. 22) For the following reasons, the Motion will be 17 granted in part, but Plaintiffs shall have leave to file an amended complaint. 18 I. Background 19 John Doe, Jane Doe, and John Doe Junior (“Junior”) (collectively “Plaintiffs”) 20 reside in Apache County, Arizona. (Doc. 21 at 1) Junior is the son of John and Jane Doe. 21 (Doc. 21 at 1) Junior has significant developmental disabilities. (Doc. 21 at 1) At the time 22 of the events in the Amended Complaint, Junior was a minor who attended special 23 education classes at Show Low High School. (Doc. 21 at 1-2) 24 Show Low Unified School District (“Defendant Show Low”) is a municipal entity 25 located in Navajo County, Arizona. (Doc. 21 at 2) At the time of the events alleged in the 26 Amended Complaint, Laurel Hostler (“Defendant Hostler”) was the special education 27 teacher at Show Low High School. (Doc. 21 at 2) Judy Fabok (“Defendant Fabok”) was a 28 teacher’s aide in Defendant Hostler’s special education class. (Doc. 21 at 2) 1 On April 21, 2018, John and Jane Doe found “graphic sexual messages and 2 photographs” on their son’s phone. (Doc. 21 at 4) The messages were from Defendant 3 Fabok. (Doc. 21 at 4) John and Jane Doe called the Show Low Police Department and an 4 investigation followed. (Doc. 21 at 4-5) Upon the police questioning Defendant Fabok, she 5 admitted to having a sexual relationship with Junior. (Doc. 21 at 5-6) Defendant Fabok 6 stated that she believed others at the school suspected their relationship. (Doc. 21 at 5) She 7 also admitted to other inappropriate conduct that she and the other special education aides 8 engaged in with the students, such as speaking about sexual acts during class and receiving 9 “massages” from students during class. (Doc. 21 at 5-6) On April 23, 2018, Defendant 10 Show Low sent a letter to the parents and guardians of the students at the high school about 11 the investigation, and Defendant Fabok was fired. (Doc. 21 at 6) 12 On May 31, 2019, Plaintiffs filed a complaint against Defendants. (Doc. 1) Plaintiffs 13 filed the Amended Complaint on September 16, 2019, alleging several claims under 14 Arizona state law and federal law. (Doc. 21) On September 24, 2019, Defendants Show 15 Low and Hostler filed the Motion seeking dismissal as to Count I (§ 1983 constitutional 16 violation), Count II (Title IX violation), and Count XI (negligent infliction of emotional 17 distress). (Doc. 22) The Motion is fully briefed and ready for review. (Docs. 22, 24, 25) 18 II. Legal Standard 19 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 20 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 22 (2007)). Thus, a dismissal under Rule 12(b)(6) is appropriate when there is: (1) the lack of 23 a cognizable legal theory, or (2) insufficient facts to support a cognizable legal claim. 24 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 25 III. Discussion 26 Defendants move to dismiss Counts I, II, and XI of the Amended Complaint. (Doc. 27 22 at 1) The Court addresses each count separately. 28 1 A. Count I Constitutional Violation: 42 U.S.C. § 1983 2 1. Defendant Show Low 3 Defendant Show Low argues that Defendant Fabok directly inflicted Plaintiffs’ 4 alleged injuries and Plaintiffs fail to state facts that could hold it liable under § 1983. (Doc. 5 22 at 3) In response, Plaintiffs argue that the Amended Complaint sufficiently alleges that 6 Defendant Show Low was either deliberately indifferent to, or actively participated in, 7 Defendant Fabok’s wrongdoing. (Doc. 24 at 3-4) 8 A plaintiff stating a § 1983 claim against a municipality must show that the alleged 9 constitutional violation was the result of: “(1) an official policy; (2) a pervasive practice or 10 custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final 11 policymaker.” Horton v. City of Santa Maria, 915 F.3d 592, 602-603 (9th Cir. 2019) (citing 12 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693-695 (1978)). In order to establish liability, 13 “[a] plaintiff must [] show deliberate action attributable to the municipality that directly 14 caused a deprivation of federal rights.” Id. (internal quotations and citation omitted). A 15 municipality may not be sued under a theory of respondeat superior. Id. 16 Here, Plaintiffs fail to state any factual allegations showing that Defendant Show 17 Low: (1) had an official policy allowing the sexual abuse of students at school; (2) had a 18 pervasive custom or practice of allowing sexual abuse to happen to students at school; (3) 19 failed to train, supervise, or discipline teachers at school regarding sexual abuse; or (4) 20 knew about the sexual abuse and made a decision not to stop the abuse. Indeed, Plaintiffs 21 do not even allege that an administrator within the school knew of the abuse. Therefore, 22 Count I will be dismissed as to Defendant Show Low. The Court does find, however, that 23 Plaintiffs should be given leave to amend. See Fed. R. Civ. P. 15(a)(2). 24 2. Defendant Hostler 25 Defendant Hostler argues that the Amended Complaint fails to allege a § 1983 claim 26 against her because she did not sexually molest Junior, she did not direct Defendant Fabok 27 to sexually molest Junior, and she did not know Defendant Fabok was sexually molesting 28 Junior. (Doc. 22 at 4) Alternatively, Defendant Hostler argues that she is entitled to 1 qualified immunity because her conduct did not violate a clearly established statutory or 2 constitutional right. (Doc. 22 at 4) In response, Plaintiffs argue that Defendant Hostler had 3 actual knowledge of what was going on and failed to act. (Doc. 24 at 5) Plaintiffs further 4 argue that Defendant Hostler is not entitled to qualified immunity because Junior’s right to 5 be free from sexual abuse at school was clearly established at the time of the abuse. (Doc. 6 24 at 7) 7 Under 42 U.S.C. § 1983, supervisors may be individually liable for the 8 constitutional violations of their subordinates if they are “personally involved” in the 9 constitutional deprivation or where there is a “causal connection between the supervisor’s 10 wrongful conduct and the constitutional violation.” MacKinney v. Nielsen, 69 F.3d 1002, 11 1008 (9th Cir. 1995).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
John D oe, et al., ) No. CV-19-08163-PCT-SPL ) 9 ) 10 Plaintiffs, ) ORDER vs. ) ) 11 ) Show Low Unified School District, et ) 12 al., ) 13 ) ) 14 Defendants. )
15 Before the Court is Defendants’ Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 16 Motion to Dismiss (the “Motion”). (Doc. 22) For the following reasons, the Motion will be 17 granted in part, but Plaintiffs shall have leave to file an amended complaint. 18 I. Background 19 John Doe, Jane Doe, and John Doe Junior (“Junior”) (collectively “Plaintiffs”) 20 reside in Apache County, Arizona. (Doc. 21 at 1) Junior is the son of John and Jane Doe. 21 (Doc. 21 at 1) Junior has significant developmental disabilities. (Doc. 21 at 1) At the time 22 of the events in the Amended Complaint, Junior was a minor who attended special 23 education classes at Show Low High School. (Doc. 21 at 1-2) 24 Show Low Unified School District (“Defendant Show Low”) is a municipal entity 25 located in Navajo County, Arizona. (Doc. 21 at 2) At the time of the events alleged in the 26 Amended Complaint, Laurel Hostler (“Defendant Hostler”) was the special education 27 teacher at Show Low High School. (Doc. 21 at 2) Judy Fabok (“Defendant Fabok”) was a 28 teacher’s aide in Defendant Hostler’s special education class. (Doc. 21 at 2) 1 On April 21, 2018, John and Jane Doe found “graphic sexual messages and 2 photographs” on their son’s phone. (Doc. 21 at 4) The messages were from Defendant 3 Fabok. (Doc. 21 at 4) John and Jane Doe called the Show Low Police Department and an 4 investigation followed. (Doc. 21 at 4-5) Upon the police questioning Defendant Fabok, she 5 admitted to having a sexual relationship with Junior. (Doc. 21 at 5-6) Defendant Fabok 6 stated that she believed others at the school suspected their relationship. (Doc. 21 at 5) She 7 also admitted to other inappropriate conduct that she and the other special education aides 8 engaged in with the students, such as speaking about sexual acts during class and receiving 9 “massages” from students during class. (Doc. 21 at 5-6) On April 23, 2018, Defendant 10 Show Low sent a letter to the parents and guardians of the students at the high school about 11 the investigation, and Defendant Fabok was fired. (Doc. 21 at 6) 12 On May 31, 2019, Plaintiffs filed a complaint against Defendants. (Doc. 1) Plaintiffs 13 filed the Amended Complaint on September 16, 2019, alleging several claims under 14 Arizona state law and federal law. (Doc. 21) On September 24, 2019, Defendants Show 15 Low and Hostler filed the Motion seeking dismissal as to Count I (§ 1983 constitutional 16 violation), Count II (Title IX violation), and Count XI (negligent infliction of emotional 17 distress). (Doc. 22) The Motion is fully briefed and ready for review. (Docs. 22, 24, 25) 18 II. Legal Standard 19 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 20 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 22 (2007)). Thus, a dismissal under Rule 12(b)(6) is appropriate when there is: (1) the lack of 23 a cognizable legal theory, or (2) insufficient facts to support a cognizable legal claim. 24 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 25 III. Discussion 26 Defendants move to dismiss Counts I, II, and XI of the Amended Complaint. (Doc. 27 22 at 1) The Court addresses each count separately. 28 1 A. Count I Constitutional Violation: 42 U.S.C. § 1983 2 1. Defendant Show Low 3 Defendant Show Low argues that Defendant Fabok directly inflicted Plaintiffs’ 4 alleged injuries and Plaintiffs fail to state facts that could hold it liable under § 1983. (Doc. 5 22 at 3) In response, Plaintiffs argue that the Amended Complaint sufficiently alleges that 6 Defendant Show Low was either deliberately indifferent to, or actively participated in, 7 Defendant Fabok’s wrongdoing. (Doc. 24 at 3-4) 8 A plaintiff stating a § 1983 claim against a municipality must show that the alleged 9 constitutional violation was the result of: “(1) an official policy; (2) a pervasive practice or 10 custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final 11 policymaker.” Horton v. City of Santa Maria, 915 F.3d 592, 602-603 (9th Cir. 2019) (citing 12 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693-695 (1978)). In order to establish liability, 13 “[a] plaintiff must [] show deliberate action attributable to the municipality that directly 14 caused a deprivation of federal rights.” Id. (internal quotations and citation omitted). A 15 municipality may not be sued under a theory of respondeat superior. Id. 16 Here, Plaintiffs fail to state any factual allegations showing that Defendant Show 17 Low: (1) had an official policy allowing the sexual abuse of students at school; (2) had a 18 pervasive custom or practice of allowing sexual abuse to happen to students at school; (3) 19 failed to train, supervise, or discipline teachers at school regarding sexual abuse; or (4) 20 knew about the sexual abuse and made a decision not to stop the abuse. Indeed, Plaintiffs 21 do not even allege that an administrator within the school knew of the abuse. Therefore, 22 Count I will be dismissed as to Defendant Show Low. The Court does find, however, that 23 Plaintiffs should be given leave to amend. See Fed. R. Civ. P. 15(a)(2). 24 2. Defendant Hostler 25 Defendant Hostler argues that the Amended Complaint fails to allege a § 1983 claim 26 against her because she did not sexually molest Junior, she did not direct Defendant Fabok 27 to sexually molest Junior, and she did not know Defendant Fabok was sexually molesting 28 Junior. (Doc. 22 at 4) Alternatively, Defendant Hostler argues that she is entitled to 1 qualified immunity because her conduct did not violate a clearly established statutory or 2 constitutional right. (Doc. 22 at 4) In response, Plaintiffs argue that Defendant Hostler had 3 actual knowledge of what was going on and failed to act. (Doc. 24 at 5) Plaintiffs further 4 argue that Defendant Hostler is not entitled to qualified immunity because Junior’s right to 5 be free from sexual abuse at school was clearly established at the time of the abuse. (Doc. 6 24 at 7) 7 Under 42 U.S.C. § 1983, supervisors may be individually liable for the 8 constitutional violations of their subordinates if they are “personally involved” in the 9 constitutional deprivation or where there is a “causal connection between the supervisor’s 10 wrongful conduct and the constitutional violation.” MacKinney v. Nielsen, 69 F.3d 1002, 11 1008 (9th Cir. 1995). A causal connection may be established by evidence that the official 12 “exhibited deliberate indifference to the rights of [others] by failing to act on information 13 indicating that unconstitutional acts were occurring.” Johnson v. Newburgh Enlarged Sch. 14 Dist., 239 F.3d 246, 254 (2d Cir. 2001). 15 Here, Plaintiffs allege in the Amended Complaint that a student volunteer told 16 Defendant Hostler of Junior and Defendant Fabok’s inappropriate communications. (Doc. 17 21 at 8) Plaintiffs further allege that, instead of reporting what the student told her, 18 Defendant Hostler had the student volunteer removed from her classroom by concocting a 19 fake story about the student to get him in trouble. (Doc. 21 at 8) In addition, Plaintiffs 20 allege several inappropriate acts that occurred in Defendant Hostler’s classroom that should 21 have put her on notice of the inappropriate sexual conduct occurring between Defendant 22 Fabok and Junior. These acts included: (1) Defendant Hostler stating to Junior that he and 23 Defendant Fabok were “communicating too much;” (2) Defendant Hostler knowing that 24 Junior and Defendant Fabok were Facebook friends; (3) Junior being allowed to walk alone 25 to the bus stop to meet Defendant Fabok, even though it was against his Individualized 26 Educational Program; (4) Defendant Fabok and Junior touching each other’s thighs while 27 in Defendant Hostler’s class; and (5) the teacher’s aides and special education students 28 giving each other “massages,” snapping towels at each other, and engaging in sexual 1 conversations during Defendant Hostler’s class. (Doc. 21 at 5-10) 2 The Court finds that these allegations are sufficient to support a § 1983 claim against 3 Defendant Hostler. Taking the allegations as true, a reasonable jury could find that 4 Defendant Hostler knew of inappropriate sexual conduct going on between Junior and 5 Defendant Fabok, yet she acted with “deliberate indifference” by failing to act on that 6 information. 7 Furthermore, the Court finds that Defendant Hostler is not entitled to qualified 8 immunity. It was well-established at the time of the events alleged in the Amended 9 Complaint (2017-2018) that students have a constitutional right to be free from gender- 10 based discrimination, including sexual abuse, at school. See Fitzgerald v. Barnstable Sch. 11 Comm., 555 U.S. 246, 258 (2009) (holding that Title IX was not meant to be a substitute 12 for § 1983 lawsuits as a means of enforcing a student’s constitutional right to be free from 13 sexual harassment by a teacher at school); see also Plumeau v. Sch. Dist. No. 40 Cty. of 14 Yanhill, 130 F.3d 432, 438 (9th Cir. 1997) (“[Plaintiff] had a constitutional right to be free 15 from state-imposed violations of bodily integrity. . . . This includes freedom from excessive 16 physical abuse by school employees.”). Therefore, Count I will not be dismissed as to 17 Defendant Hostler. 18 B. Count II Title IX Violation: 20 U.S.C. § 1681 19 Defendant Show Low argues that Count II must be dismissed because Plaintiffs fail 20 to allege deliberate indifference on their part. (Doc. 22 at 5) In response, Plaintiffs argue 21 that the Amended Complaint alleges several instances where Defendant Hostler and other 22 supervisors had actual knowledge of the abuse and failed to act. (Doc. 24 at 5) 23 A plaintiff may recover monetary damages through a private right of action under 24 Title IX when an official “with authority to take corrective action to end the discrimination” 25 has actual knowledge of the discrimination and fails to adequately respond—i.e., acts with 26 deliberate indifference. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 27 (1998). Within the K-12 context, courts generally interpret an official “with authority to 28 take corrective action to end the discrimination” to mean a school administrator with the 1 authority to hire and fire employees. See Baynard v. Malone, 268 F.3d 228, 238-39 (4th 2 Cir. 2001) (holding that the principal could not be held liable under Title IX because he did 3 not have the authority to fire or transfer the offending teacher); see also Doe A. v. Green, 4 298 F.Supp.2d 1025, 1032 (D. Nev. 2004) (stating a Title IX claim against the principal, 5 assistant principal, and athletic director because they “had authority to address the alleged 6 discrimination”). Furthermore, the test for deliberate indifference is “whether a reasonable 7 fact-finder could conclude that the [official]’s response was clearly unreasonable in light 8 of the known circumstances.” Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 9 2006) (internal quotations and citation omitted). 10 Here, Plaintiffs do not allege that the principal or any other school administrator 11 with the authority to fire or transfer Defendant Fabok was made aware of the sexual abuse 12 happening to Junior. Plaintiffs’ general allegations that “others suspected” the 13 inappropriate relationship between Junior and Defendant Fabok is insufficient to support 14 Plaintiffs’ claim. Again, there is no specific indication that an administrator with authority 15 to address the abuse was included in those who “suspected” the relationship. Therefore, 16 Count II of the Amended Complaint shall be dismissed. The Court does find, however, that 17 Plaintiffs should be given leave to amend. See Fed. R. Civ. P. 15(a)(2). 18 C. Count XI: Negligent Infliction of Emotional Distress 19 Defendants assert that Plaintiffs’ Count XI fails because John and Jane Doe did not 20 directly witness any of the events responsible for Junior’s injuries. (Doc. 22 at 6) In 21 response, Plaintiffs assert that they witnessed firsthand the sexually explicit messages and 22 photographs that caused Junior psychological damage, and therefore, they have met the 23 pleading requirements for Count XI. (Doc. 24 at 7) 24 To plead a claim for negligent infliction of emotional distress under Arizona law, a 25 plaintiff must allege: (1) shock or mental anguish manifested as a physical injury; (2) the 26 emotional distress resulted from witnessing an injury to a person with whom the plaintiff 27 has a close personal relationship; and (3) the plaintiff was in the “zone of danger.” Keck v. 28 Jackson, 593 P.2d 668, 669-70 (Ariz. 1979). “[A] physical injury, as well as a long-term 1| physical illness or mental disturbance, constitutes sufficient bodily harm to support a claim 2| of negligent infliction of emotional distress.” Monaco v. HealthPartners of S. Ariz., 995 3| P.2d 735, 739 (Ariz. Ct. App. 1999). 4 Here, Plaintiffs allege that John and Jane Doe have experienced generalized anxiety, sleeplessness, gastrointestinal distress, headaches, depression, and weeping. (Doc. 21 at 6| 12) In addition, Plaintiffs allege that Jane Doe sought psychiatric and psychological 7| treatment. (Doc. 21 at 12) Next, Plaintiffs assert that Junior’s inappropriate 8 | communications with Defendant Fabok have resulted in Junior being diagnosed with an Q| adjustment disorder and anxiety. (Doc. 21 at 11) Finally, Plaintiffs allege that they 10 | witnessed Junior’s injuries firsthand and were in the “zone of danger” for Junior’s injuries 11 | because Jane Doe saw text messages sent from Defendant Fabok to Junior on April 21, 12| 2018. (Doc. 21 at 4) Additionally, later the same day John Doe inspected Junior’s phone and saw the “graphic sexual messages and photos” sent by Defendant Fabok. (Doc. 21 at 14| 4) The Court finds that, after taking the allegations as true, the Amended Complaint 15 | sufficiently alleges a claim for negligent infliction of emotional distress. Therefore, Count XI will not be dismissed. 17 Accordingly, 18 IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 22) is granted in part 19| and denied in part. Counts I and II are dismissed without prejudice as to Defendant 20 | Show Low. 21 IT IS FURTHER ORDERED that Plaintiffs shall have thirty (30) days from the 22 | date of this Order to file their Second Amended Complaint. 23 Dated this 30th day of April, 2020. 24 25 26 GE 27 28