STARK, District Judge:
This federal civil rights action presents the question of whether the Brandywine School District School Board and Superintendent maintained a custom or policy of deliberate indifference that permitted one of its teachers to violate the constitutional rights of one of its students. It also poses the issue of whether the Superintendent knew of or acquiesced in the teacher's conduct. Finally, even if the record does not justify proceeding to trial on the plaintiff's federal cause of action, the Court must consider whether to exercise supplemental jurisdiction over the plaintiff's state law claims.
Pending before the Court is the motion for summary judgment filed by the defendants, seeking judgment on all counts. (D.I. 69) For the reasons described below, the Court will grant this motion in part and deny it in part.
The nature of this case necessitates devoting substantial space to laying out the facts, as they appear from the record, taken in the light most favorable to the plaintiff (as the non-moving party).
Plaintiff is JP, a minor, who at the times pertinent to this suit was a student at Claymont Elementary School ("Claymont") in the Brandywine School District ("District"). JP is a male. This suit was filed by Kia Thomas and Jerome Pitts, Sr. as guardians ad litem for JP ("Plaintiff").
In 2002, Defendant Brandywine School District hired Defendant Rachel Holt ("Holt"), a female, to teach in the District. (D.I. 70 at 15)
During the 2003-04 academic year, Holt was assigned to teach sixth grade at Claymont, an elementary school within the District, (D.I. 71 at A93) Claymont's principal was Betty Pinchin, and the assistant principal was George Thompson. Holt's evaluations in 2003-04 were mostly "exemplary" and "effective." (Id. at A94-95) Her evaluations specifically indicated, however, that she needed to establish "a plan for more effective behavior management at the onset of the new school year." (Id.)
The following year, 2004-05, Holt received less positive evaluations. Assistant Principal Thompson determined that "[n]egative interactions with students need[ ] to be closely monitored and avoided at all cost. . . . Ms. Holt needs to work hard at toning down the rhetoric used to address all students in class and around the building." (Id. at A96-97) Thompson's concerns appear to have centered on encouraging Holt to approach students in a "more positive and non-confrontational manner." (Id.)
In the 2005-06 school year, Plaintiff JP was a student in one of Defendant Holt's sixth grade science classes. (D.I. 77 at B327) At the beginning of the 2005-06 school year, Holt was placed on an individual "progressive improvement plan," in which Holt was to receive more classroom observations and was expected to do outside reading on improving her teaching methods. (Id. at A98-99) Progressive discipline is the regular process that the District uses when disciplining its teachers. (Id. at A71-77) Pursuant to Holt's individualized plan, Thompson and Pinchin observed Holt in her classroom, in October and December 2005, respectively. Both Pinchin and Thompson recognized positive aspects of Holt's performance, but also noted that Holt needed to be careful to be more sensitive because she might come across as too harsh to students sometimes. (Id. at A104-08)
At least as early as January 2006, Principal Pinchin began to receive complaints from parents about Holt's behavior. Pinchin and Thompson met with Holt on January 11, 2006. On January 20, 2006, Thompson sent Holt a follow-up email "concerning issues that were discussed during our meeting on January 11, 2006." (D.I. 77 at B177) Specifically, Thompson's email stated:
The following are issues regarding classroom and hallway observations that were addressed.
(Id.) (emphasis in original)
Pinchin and Thompson met with Holt again on January 20, 2006, this time to discuss reports that Holt was taking some students home in her personal vehicle. (D.I. 77 at B179) At this meeting, Pinchin and Thompson expressly instructed Holt not to drive students home anymore. (Id.)
On January 21, 2006, Pinchin received a parental complaint about Holt, which Pinchin documented. (Id. at B178) In a note
(D.I. 71 at A110; D.I. 76 at B123)
On January 27, Pinchin received a complaint from another parent that also focused on classroom instructional behavior. (D.I. 71 at A111) Pinchin and Thompson then learned that Holt had disobeyed their orders to stop driving students home. This prompted Thompson, on January 30, 2006, to issue Holt a "written notice and final request to cease this practice" of driving students home. (D.I. 71 at A1 13) In an email to Holt that same day, Thompson wrote:
(Id.) (emphasis in original)
Meanwhile, sometime between late December 2005 and early February 2006, students began to report to the guidance counselor, Mary Ann Giannotti, that there was "monkey business" going on in Holt's classroom. Much of the behavioral concerns that Counselor Giannotti and Principal Pinchin learned of at this time were from "the academic standpoint and the professional standpoint," such as "phones being taken out in class, radios being turned on to music stations like Q102 . . . kids were dancing on tables, standing up on chairs, not enough learning going on." (D.I. 77 at B37-39) While Giannotti first recalls being informed of some of this inappropriate behavior in late-December of 2005 or early January of 2006, Giannotti only first reported these student complaints to Pinchin sometime in January or February 2006. (Id.) On February 1, 2006, Giannotti sent Pinchin an email describing, among other things, reports of Holt disparaging certain students, allowing students to yell and curse in class, creating nicknames for students, and not enforcing the school's dress code.
While most of the complaints about Holt's conduct through late January were about classroom management (with the notable exceptions of the late-night instant messaging and driving students home after school), sometime around February 2006, accounts of Holt's behavior got "progressively worse." (D.I. 77 at B39) This is reflected, for example, in Giannotti's February 1 email to Pinchin, in which Giannotti relayed that one student reported that, "Ms. Holt favors a select few [number] of boys and even sits on their lap. She [the student] has seen Ms. Holt kiss [two students] on the face." (D.I. 71 at A1 15) In that same email, Giannotti mentioned that another student "[h]as concerns that Ms.
The February 1, 2006 email also states: "Ms. Holt took [Plaintiff] to McDonald's for his birthday . . . [Another student] asked to go to McDonald's and Ms. Holt replied, `It's my baby's birthday.'" (Id.) Another student witnessed Holt "many times sitting on [Plaintiff's] lap and kissing him on the cheek," (D.I. 77 at B188) Another student's parent also indicated that Holt was seen spending time with her students on a Friday night at the skating rink.
During this time, Pinchin reported some of these behaviors to the District's Director of Human Resources, Debbie Bullock. The disciplinary process at the District follows a procedure that attempts to comport with state law as well as adhere to the contractual obligations contained in the collective bargaining agreement between the District and the teachers' union, all while protecting students' rights. Typically, the District's disciplinary process starts with a documented meeting, which is "like a warning." (D.I. 77 at B118) If the meeting does not correct the problems, the next step is a cautionary letter and involvement of the District's Human Resources Department. If the behavior still continues, the next steps are more serious and include suspension and possible termination. (Id.)
As Pinchin continued to receive complaints about Holt in February 2006, eventually Pinchin scheduled a meeting with Bullock. On February 15, 2006, Pinchin and Bullock met with Holt. (Id. at B183) The next day, February 16, 2006, the District issued Holt a cautionary letter. (Id.) That letter reads as follows:
(Id.)
On March 1, 2006, both a parent volunteer and the school librarian witnessed Holt give "a loud kiss" to one of her male students (not the Plaintiff) in the Claymont library. (Id. at B184) The librarian suggested to Pinchin that "[Holt] seemed to be doing this in jest, but it was loud enough to be heard throughout the class." (Id.) The librarian also informed Pinchin that Holt sometimes called "the boys" "boo" or "my boo" as she lined them up in the hallways. (Id.) Additionally, the librarian told Pinchin that Holt had "promoted a hugging issue," after apparently having "made a bet" with a female student that the student "couldn't go a certain amount of time without hugging boys. The time was apparently up. Rachel [Holt] said `OK'" and, thereafter, the female student grabbed two boys and hugged them and was headed for a third boy before Holt said, "`Save it.'" (Id.)
Pinchin forwarded the librarian's email to Bullock the next day, March 2, indicating that both the parent and the librarian had spoken to Pinchin about Holt's behavior and asking Bullock to, "Please advise." (Id.) Also on March 2, Holt emailed Bullock (copying Pinchin) to inform her of the kissing incident. In an email Holt entitled, "I need help!!!!!," Holt explained to Bullock that when she was picking up her students from the library, Holt noticed "what a great job they were doing." (Id. at B190) She went over to the male student (not the Plaintiff) and "said great job and hugged him and with out even thinking gave him a quick kiss on the cheek." (Id.) In Holt's words, she "didn't even realize" that she had kissed him, adding, "I know it was wrong. I feel really terrible." (Id.) As further explanation, Holt wrote: "If you knew [the student,] keeping him quite [sic] for any length of time is an accomplishment, I was only rewarding him for a job well done. I also hugged others too. My room is a little difficult to keep on task. So I was rewarding them." (Id.) Holt also wrote, "I have stopped totally all of the things we discussed at our meeting. I no longer talk on the computer or phone with any of my students." (Id.) She added:
(Id.)
Still on March 2, Pinchin visited Holt's room to set up a meeting with her for after school, (D.I. 77 at B191) When Pinchin went up to Holt's room, she found Holt "sitting along side" the male student, J, whom Holt had admitted to hugging and kissing in the library the day before. (Id.) Pinchin wrote to Bullock; "When questioned about this she [Holt] told me that that was the only way she could keep him seated. [J] is also one of the boys she was taking home. Will wait to hear from you." (Id.)
On March 10, 2006, the District suspended Holt for three days. (Id. at B192) Pinchin's letter informing Holt of the suspension reads as follows;
(Id.) Thompson testified that he and Pinchin thought that three days was not a sufficient amount of time for Holt's suspension, but Bullock was the one who determined the length of the suspension. (D.I. 76 at 13; D.I. 77 at B216)
After serving her suspension, Holt returned to work on March 16, 2006. (D.I. 77 at B300) Over the course of the following week, March 24 through March 31, Holt engaged in sexual intercourse with Plaintiff, who was one of her sixth grade students, numerous times. (Id. at B64; Id. at B327) Holt was arrested on April 4, 2006 and charged with multiple counts of rape and supplying alcohol to a minor. (D.I. 70 at 19; D.I. 76 at 15) Holt also allowed one of Plaintiff's friends to watch the two of them having sex. (D.I. 77 at B7) Holt eventually pled guilty and is now serving an extended jail sentence. (D.I. 78 at B858)
Counselor Giannotti, who was "probably the closest one to Ms, Holt in the school," has testified in the course of this lawsuit that she had not thought that any of the behavior that she had observed Holt engage in had been sexually inappropriate: "Did I ever say that she was acting sexually inappropriate . . . No. I never said sexually. I said inappropriate." (D.I. 77 at B60) Pinchin testified that after she had put into a place a system in which she would meet with Holt weekly to more closely monitor her classroom performance, and after her suspension, Holt stopped sitting on students' laps. (Id. at B126) Pinchin testified: "no one observed her nor was it reported that that was continuing to go on." (Id.) When asked about whether Pinchin had suspected that Holt's inappropriate behavior "may go beyond what" she had observed at school, Pinchin answered, "That never entered my mind . . . I didn't really see anything that rose to that, to that level at that, at that
At the relevant times, the District had policies and procedures intended to deal with sexual harassment. Under the District's "Policy Manual," the District is required to comply with the State Code of Conduct. (D.I. 71 at A46) In turn, the State Code of Conduct mandates that the District's Board Members always ensure that they are maintaining the "public trust," including by avoiding any appearance of impropriety. 29 Del. C. § 5801 et. seq. The District also had a policy on harassment of students by teachers. (Id. at A55) That policy defined sexual harassment as "a form of harassment which involves unwanted behaviors of a sexual nature." The policy further noted that sexual harassment may include "inappropriate touching or any act which would constitute sexual harassment under Title 11 of the Delaware Code." (Id. at A56) Moreover, the policy required that, "All allegations of harassment of a student shall result in immediate investigation." (Id.)
Plaintiff filed this lawsuit in the Superior Court for the State of Delaware, raising, inter alia, various state law claims, as well as a claim under 42 U.S.C. § 1983. (D.I. 77 at B1) Plaintiff named as defendants the District's School Board; all members of the District's School Board, the Superintendent, Dr. Bruce Harter; and Holt. On April 9, 2008, the Board, the Board Members, and Harter (collectively, the "School District Defendants") removed the case to federal court, pursuant to 28 U.S.C. § 1441. (D.I. 1)
A grant of summary judgment is appropriate only where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89
To defeat a motion for summary judgment, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; see also Podobnik v. U.S. Postal Service, 409 F.3d 584, 594 (3d Cir.2005) (stating party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks omitted). However, the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment," a factual dispute is genuine only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Anderson Court provides further guidance: "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (entry of summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial").
Title 42 U.S.C. § 1983 ("Section 1983") provides in relevant part:
Section 1983 provides a private cause of action against persons clothed with the authority of state law who violate a citizen's federal constitutional or statutory rights. Municipalities and other governmental bodies are "persons" for purposes of Section 1983 and, therefore, may be subject to suit. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Here, Plaintiff has sued the Board Defendants and Superintendent Harter in their individual and official capacities. See generally Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (holding that police officer may be sued in his individual capacity); see also generally Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (noting that distinction between individual and official
The evidentiary showing Plaintiff must make to press his Section 1983 claims against the Board Defendants and Harter in their official capacities is different from the evidentiary burden confronting him in pressing these same claims against the Board Defendants and Harter in their individual capacities. Similarly, the defenses available to the defendants are different in their official and individual capacities.
In particular, in suing the Board Defendants and Harter in their official capacities, Plaintiff must come forward with facts sufficient to establish that the District's "policy, custom, or practice" played a part in the alleged constitutional violations.
The Board Defendants and Harter contend that Plaintiff has failed to make a prima facie showing that they violated Plaintiff's constitutional rights.
Because the Supreme Court has expressly rejected respondeat superior (i.e., vicarious liability) as a means of holding a municipality liable for constitutional violations perpetrated by its employees, Plaintiff must adduce facts sufficient to demonstrate that the Board Defendants and/or Harter maintained a "municipal policy of some nature" that caused his constitutional deprivation. See Monell, 436 U.S.
There are two means of demonstrating the required causal link between a municipal "policy" and an alleged constitutional violation. First, a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" will suffice. City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Second, even if a policy has not received approval through "official decisionmaking channels," customs or practices may be the basis for municipal liability if they are so permanent and well settled that they operate as law. See Kelly v. Borough of Carlisle, 622 F.3d 248, 263 (3d Cir.2010); Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir.2007). That is, "acquiescence in a long-standing practice or custom" that "constitutes the standard operating procedure of the local governmental entity" is grounds for holding a municipality liable. Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), abrogated on other grounds by statute, 42 U.S.C. §§ 1981, 1977(a).
In addition to demonstrating that the municipality's policy or custom played an affirmative role in the constitutional deprivation, in cases in which a municipality's
Here, Plaintiff's Section 1983 claim against the Board Defendants and Harter in their official capacities is, in essence, that these defendants failed to protect him from sexual abuse by Holt. To survive summary judgment and proceed to trial on this claim, Plaintiff must point to record evidence sufficient to enable a reasonable juror to conclude that: (1) the District maintained a policy, custom, or practice that led to Holt's abuse; and (2) that the Board Defendants and/or Harter were aware of and consciously disregarded a substantial risk that an obvious consequence of their inaction would be Holt's sexual abuse of Plaintiff.
Plaintiff, of course, does not point to any official policy that permits District students to be sexually abused by District teachers. Instead, Plaintiff, argues that practices and customs maintained by the School District Defendants "reflect their deliberate indifference to notice of plaintiff's sexual abuse and harassment by Holt." (D.I. 76 at 31-32) Revealingly, however, the primary portion of Plaintiff's brief that purports to describe the record evidence establishing a policy or custom and deliberate indifference—Section II.A.3 of his Answering Brief (D.I. 76 at 2-14, 23-28)-actually describes Plaintiff's record support for his state-law gross negligence claim.
Although Plaintiff does not expressly state his theory of the operative policy or custom of deliberate indifference, the Court infers from the alleged failings listed by Plaintiff—failing to suspend Holt, failing to interview students or parents, failing to investigate Holt's alleged insubordination, failing adequately oversee Pinchin, failing to warn Plaintiff, failing to report Holt, and failing to follow District Policy—that Plaintiff's theory is that the School District Defendants had a sufficiently well-settled practice of failing to supervise teachers. This is a difficult theory to prove. See, e.g., Mize v. Tedford, 375 Fed.Appx. 497, 500 (6th Cir.2010) ("This `failure to supervise' theory of municipal liability is a rare one. Most agree that it exists and some allege they have seen it, but few actual specimens have been proved."). Failing to adequately supervise, monitor, or train teachers "can ordinarily be considered deliberate indifference only where the failure has caused a pattern of violations." Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir.2000); see also Christopher v. Nestlerode, 240 Fed.Appx. 481, 489-90 (3d Cir.2007) (noting also that failure to train cases are treated similarly to failure to supervise cases). Indeed, "as a general rule, an isolated incident, however unfortunate, does not demonstrate evidence of [a municipality's] persistent and widespread policy and will not be considered so pervasive as to be a custom or practice." Doe v. Sch. Bd. of Broward Cty., 604 F.3d 1248, 1263-64 (11th Cir.2010); see also Nestlerode, 240 Fed.Appx. at 489-90 (noting that a single constitutional violation may provide basis for municipal liability, but only where need for more training or supervision is "so obvious and the inadequacy so likely to result in the violation of constitutional rights" that the municipality's inaction amounts to deliberate indifference).
Hence, relevant to both the policy and deliberate indifference prongs is the fact that the record reveals no evidence that Holt engaged in sexual misconduct prior to the March 2006 abuse of Plaintiff. Moreover, the record does not contain evidence from which a reasonable juror could conclude that any of the School District Defendants had actual or constructive knowledge that Holt had ever previously engaged in sexual misconduct. See Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 175 (3d Cir.Pa.2001) (granting summary judgment in absence of evidence that "policymakers were aware of similar
Accordingly, the Court will grant summary judgment to the Board Defendants and Harter in their official capacities with respect to Plaintiff's Section 1983 claim.
Plaintiff also responds to the School District Defendants' motion for summary judgment by invoking the "state-created danger theory," which Plaintiff contends is an alternative means of attaching liability to the School District Defendants. The Third Circuit has recognized a state-created danger theory of liability under Section 1983. See Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir.1996).
To prevail on a state-created danger theory, a plaintiff must prove the following
The second prong of this test—the degree of culpability—is a high threshold to satisfy and will often decide the case. See Sanford, 456 F.3d at 305 ("[T]he outcome of a state-created danger case will often turn on the [the culpability] prong."). The exact degree of culpability "necessary to reach the conscience-shocking level depends upon the circumstances of a particular case." Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.1999). In Sanford, the Third Circuit elaborated on the "shocks the conscience standard," stating; "[s]ometimes, an intent to cause harm has been required; other times, deliberate indifference has been sufficient." Sanford, 456 F.3d at 304-05.
It is clear that the degree of culpability required to prevail on a state-created danger theory in the circumstances presented here is at least deliberate indifference.
Plaintiff also contends that Dr. Harter is individually liable under Section 1983.
Where, as here, individual liability is predicated on a defendant's supervisory role, the supervisor-defendant "must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior. . . . Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence . . ." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988), see also Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir. 1995) (noting that actual knowledge can be inferred from defendant's behavior). In other words, a supervisor may only be held liable for a constitutional violation in which the supervisor can fairly be said to have had a personal involvement.
Alternatively, supervisors can be "liable if they participated in violating plaintiff's rights, directed others to violate them, or, as the person[s] in charge, had knowledge of and acquiesced in [their] subordinates' violations." Id.; see also Brown v. Rinehart, 325 Fed.Appx. 47, 50 (3d Cir.2009) (granting qualified immunity to supervising police chief in absence of evidence of personal involvement through participation, knowledge, or acquiescence in violation of constitutional rights); A.M., 372 F.3d at 582 (discussing two theories of supervisor liability); Atkinson v. Taylor, 316 F.3d at 257, 270 (3d Cir.2003) (denying summary judgment to supervisor in light of material and genuine questions about supervisor's "actual knowledge of" and "acquiesc[ence] in" subordinate's violations).
While the Third Circuit has not adopted a test for determining when supervisory liability exists based on sexual harassment in the public school context, several other courts of appeals have done so, and the Court considers those tests to be highly instructive. Thus, in order to hold Barter liable in his individual capacity, Plaintiff must show;
Doe v. Taylor Ind. Sch. Dist., 15 F.3d 443, 454 (5th Cir.1994) (en banc); see also Doe v. Flaherty, 623 F.3d 577, 585 (8th Cir. 2010) (requiring "notice of a pattern of unconstitutional acts" by teacher)., Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1266 (11th Cir.2010) (adopting similar test requiring "history" of "obvious, flagrant, [or] rampant" abuse); Baynard v. Malone, 268 F.3d 228, 236 (4th Cir.2001) (adopting similar test requiring supervisor have knowledge of "pervasive and unreasonable risk" of constitutional injury); Gates v. Unified Sch. Dist. No., 449 of Leavenworth Cnty., 996 F.2d 1035, 1041 (10th Cir.1993) (same). At least two district courts within the Third Circuit have adopted the Fifth Circuit's test, requiring facts "pointing plainly toward the conclusion that the subordinate was sexually abusing" the student,
Here, there is insufficient record evidence to permit a reasonable juror to find that Harter had actual knowledge of sexual abuse by Holt. Indeed, as has already been noted, there is no evidence that Holt engaged in sexual abuse prior to March 24, 2006. Nor does the record permit a finding that Harter "learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student," D.C.G., 2009 WL 838548, at *10, 2009 U.S. Dist. LEXIS 26446, at *33, or that Harter had knowledge of a "known" and "obvious" risk that the sexual abuse was ongoing or was practically certain to occur. See Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (noting that defendant must be aware of known or obvious consequence of action); Brown v. Callahan, 623 F.3d 249, 255 (5th Cir.2010) (noting that supervisor/municipal actor must have disregarded known or obvious consequence that failure to supervise would result in constitutional violation).
It is undisputed that no administrator received any complaints, whether from other teachers, parents, or students, that Holt was actually sexually abusing Plaintiff, or any other student. Harter testified that Debbie Bullock, the Director of Human Resources, first brought Holt's problematic behavior to his attention approximately a "couple of months, maybe three months before [he] got the call from Newcastle County Police" that Holt had been arrested for sexually abusing Plaintiff, (D.I. 78 at B758) Harter testified, and Plaintiff does not dispute, that the only information about which Harter had actual notice was that Holt was driving students home in her personal vehicle and that Holt had "kissed a student on the cheek." (Id. at B761)
Plaintiff alleges that Harter "was aware that these activities could lead to sexual abuse or harassment, but never determined or followed up as to how Pinchin had investigated the situation to determine whether sexual harassment was occurring, how it was being monitored, or whether it was resolved." (D.I. 76 at 40) Even assuming, arguendo, that the record supports Plaintiff's contentions, this is simply an inadequate basis from which a reasonable juror could find the requisite knowledge on Barter's part to impose individual liability under Section 1983. Plaintiff must demonstrate not that Harter knew that driving students home could potentially lead to sexual abuse, but instead that Harter knew enough to "point plainly" toward ongoing sexual abuse by Holt, or at least a "known" and "obvious" risk that such abuse was practically certain to happen. The record simply does not support such conclusions here.
Accordingly, the Court will grant Harter's motion for summary judgment in his individual capacity.
In addition to his federal Section 1983 claim, Plaintiff's complaint also asserts several claims against the School District Defendants under Delaware state law. Specifically, Plaintiff alleges that the School District Defendants were grossly negligent and negligent, breached their fiduciary duty owed to Plaintiff, and engaged
The School District Defendants contend that the Delaware Tort Claims Act ("DTCA" or "the Act") bars all of Plaintiff's state law claims because Plaintiff cannot establish that they acted in bad faith or with gross negligence. See 10 Del. C. § 4001 et. seq. In the alternative, the School District Defendants contend that the Plaintiff cannot establish a prima facie showing on any of the state law claims. (D.I. 70 at 28; Id. at 33)
Before turning to the School District Defendants' contentions, the Court must first address whether it should use its discretion to exercise supplemental jurisdiction over Plaintiff's state law claims, given the Court's decision to grant the School District Defendants summary judgment on the only federal claim asserted by Plaintiff.
This Court's jurisdiction over this action was originally premised on 28 U.S.C. § 1331, as Plaintiff's Section 1983 claim presents a federal question. A federal court may hear state law claims that are closely related to a federal cause of action, so long as the state law claims arise out of a "common nucleus of operative fact" with the claims that give rise to the district court's original jurisdiction. 28 U.S.C. § 1367; see also De Asencio v. Tyson, 342 F.3d 301, 307-08 (3d Cir.2003). Supplemental jurisdiction promotes "judicial economy, convenience, and fairness to litigants." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
Whether a district court will exercise its supplemental jurisdiction is within the court's discretion (subject to certain statutory exceptions that are not pertinent here). See, e.g., New Rock Asset Partners v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1505 (3d Cir.1996). In this case, since the "same acts violate parallel federal and state laws, the common nucleus of operative facts is obvious." Lyon v. Whisman, 45 F.3d 758, 761 (3d Cir.1995). Thus, were Plaintiff's Section 1983 claims proceeding to trial, it would almost certainly follow that Plaintiff's state law claims would proceed in this Court as well.
Generally, where, as here, all substantive federal claims are resolved prior to trial, the primary justifications for retaining jurisdiction over state law claims are no longer viable. See, e.g., Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir.1998) (noting that it is particularly appropriate for district court to dismiss state claim where "the federal claim on which the state claim hangs has been dismissed"); Parker & Parsley Petroleum v. Dresser Indus., 972 F.2d 580, 585 (5th Cir.1992) ("Our general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed."); see also 16 Moore's Federal Practice Civil § 106.66. Nonetheless, this is a general rule and not a mandatory requirement. See Tomaiolo v. Mallinoff 281 F.3d 1 (1st Cir.2002) (allowing state constitutional claims to go forward even when federal claims were dismissed); 16 Moore's Federal Practice Civil § 106.66 ("The district court retains the power to hear a supplemental state claim after dismissal of all federal claims
This case presents one of the rare instances in which the balance of the relevant factors favors exercising supplemental jurisdiction, despite the absence of any federal claim that will be proceeding to trial. First, with respect to judicial economy, most relevant is that this Court has expended substantial resources on this case during the more than two and one-half years since it was removed here from state court, including resources devoted to presiding over mediation and later preparing for and hearing oral argument on—and writing this opinion resolving—the pending motion for summary judgment. See, e.g., Mendoza v. Murphy, 532 F.3d 342, 346-47 (5th Cir.2008) (finding no abuse of discretion in retaining supplemental jurisdiction when case had been pending in federal court for more than a year, discovery deadline had passed, and parties had fully briefed defendants' motion for summary judgment); Ametex Fabrics, Inc. v. Just in Materials, Inc., 140 F.3d 101 (2d Cir.1998) (affirming exercise of supplemental jurisdiction when parties had engaged in substantial discovery under expedited schedule and held settlement conference before magistrate judge). Pursuant to the Court's scheduling orders, discovery is complete, a pretrial conference is scheduled for next month, and trial is scheduled for February 2011. It would be inefficient at this late date to kick this case back to state court, thereby necessitating that a state court judge study and rule on the summary judgment issues with respect to the state law claims and (potentially) fit the case into that judge's no-doubt already crowded trial docket.
Second, it would be more convenient for all parties to try this case now, which, as a practical matter, requires that the case remain in federal court. During oral argument, counsel for the School District Defendants effectively conceded this point.
Third, fairness also favors retaining jurisdiction here, again due to the timing issues. The events giving rise to this case primarily occurred approximately five years ago; any additional significant delay in getting this matter to trial could cause memories to fade even further. Plaintiff, who was in sixth grade when sexually assaulted by Holt, turns 18 next month, and has a legitimate interest in getting this case to trial. Additionally, given that it was Defendants who removed this case from state court to federal court in the first place, it would be difficult for Defendants now to argue that trial in federal court is somehow unfair to them.
Finally, while comity likely always favors returning state-law claims to state court, here, given all of the other circumstances already mentioned, comity does not outweigh the other factors that favor exercising supplemental jurisdiction. In this regard, it is also worth noting that, for reasons that will be explained below, the Court will be granting the School District Defendants summary judgment on three of Plaintiff's state law claims, and only one claim (for gross negligence) will be proceeding to trial.
Therefore, the Court concludes that the appropriate exercise of its discretion in the unique circumstances presented by this case is to retain supplemental jurisdiction and allow Plaintiff's state law claims to be resolved here in federal court.
Plaintiff alleges both negligence (Count III) and gross negligence (Count IV) against the Board Defendants and Superintendent Harter. (D.I. 77 at B11-12) As the School District Defendants correctly contend, before the Court can assess the merits of these claims, the Court must first determine whether Plaintiff can "over[come] the protections afforded them [the Defendants] by the Act," (D.I. 70 at 28)
The Delaware Tort Claims Act provides, in pertinent part, that;
10 Del. C. § 4001.
Both parties acknowledge that "to avoid application of the Act, Plaintiff must show that the School District engaged in: (1) ministerial actions, (2) actions taken in bad faith and not in the public interest, or (3) actions of gross or wanton negligence." (D.I. 70 at 28; D.I. 76 at 16) See also Scarbrough v. A.I. duPont High Sch., 1986 WL 10507, at *2 (Del.Super.Ct. Sept. 17, 1986). The parties disagree, of course, as to whether Plaintiff can show any of these three things. The Court will address each in turn.
Under the DTCA, when public officials perform discretionary acts, they may be held liable only for gross negligence; on the other hand, when public officials are performing ministerial actions, they may be held accountable when their actions are merely negligent. See Whitsett v. Capital Sch. Dist., 1999 WL 167836, at *1, 1999 Del.Super. LEXIS 70, at *3 (Del.Super.Ct. Jan. 28, 1999) (noting that state entities may be liable for mere negligence for ministerial actions). The School District Defendants contend that all of the actions they took were discretionary as opposed to ministerial. (D.I. 70 at 29) See also O'Connell v. LeBloch, 2000 WL 703712, 2000 Del.Super. LEXIS 128 (Del.Super.Ct. Apr. 19, 2000). The Court agrees. Decisions about whether to hire a person, fire a person, or discipline a person are discretionary. See Simms v. Christina Sch. Dist., 2004 WL 344015, 2004 Del.Super. LEXIS 43 (Del.Super.Ct. Jan. 30, 2004) ("I think it clear that the decision to hire Connor as a residential advisor was discretionary").
Contrary to Plaintiff's assertions, there were no "hard and fast rules" concerning Holt's supervision, in the difficult and troubling circumstances in which this case arose. It is not enough to say, as Plaintiff does, that under District policy and state law the School District Defendants were mandated to conduct an investigation and/or file a report. The District's policy mandated investigation of an allegation of sexual harassment, but discretion was
The DTCA provides no shelter from liability for actions by a public official taken in bad faith. Plaintiff contends that the School District Defendants' actions with respect to Holt were taken in bad faith. In Plaintiff's view, the School District Defendants did not discipline Holt aggressively enough and failed to do so because they were afraid of being sued. (D.I. 76 at 30-31) To Plaintiff, the School District Defendants acted in bad faith by not predicating their conduct solely on the best interests of the District's students.
The School District Defendants counter that Plaintiff's allegations of bad faith are "unreasonable" and "absurd." (D.I. 70 at 31) In the School District Defendants' view, their efforts to comply with applicable District policies, with the District's collective bargaining agreement with its teachers' union, and with state law all demonstrate their good faith.
The Court agrees with the School District Defendants that the record is devoid of any evidence that any of them acted in bad faith. Certainly, the School District Defendants' attempt to comply with its policy, statutory, and contractual obligations, all while attempting to protect the constitutional and statutory rights of its students (including Plaintiff), does not amount to bad faith conduct.
Plaintiff concedes that, should the Court determine (as it has) that the School District Defendants' conduct in supervising Holt and responding to complaints about her were discretionary and were taken in good faith, Plaintiff must then create a genuine dispute of material fact that the School District Defendants' conduct was "wanton" or "grossly negligent." (D.I. 76 at 17) The Act does not provide immunity for actions—even discretionary, good faith actions—that are wanton or grossly negligent. See Hughes ex rel. Hughes v. Christina Sch. Dist., 2008 WL 73710, at *4 (Del.Super.Ct. Jan. 7, 2008) (granting summary judgment to school district defendants where there was no evidence of gross negligence or wanton conduct).
Under Delaware law, gross negligence is a higher level of negligence representing an extreme departure from the ordinary standard of care. See Browne v. Robb, 583 A.2d 949, 953 (Del.1990). A person acts wantonly when, "with no intent to cause harm," she "performs an act so unreasonable and dangerous" that the person knows or should known that "there is an eminent likelihood of harm which can result." Hughes, 2008 WL 73710, at *4.
There is record evidence that, at times between at least September 2005 and early March 2006, Holt was: sitting on students' laps; hugging and kissing students on the cheek; driving students home in a personal vehicle, even after being directed not to do so; instant messaging students late at night; socializing with students on weekends; and calling students "boo" or "baby." Plaintiff also finds in the record a litany of actions (and inaction) that, he alleges, falls so far short of the ordinary standard of care in responding to Holt's inappropriate behavior as to constitute wanton conduct or gross negligence. For example, Plaintiff contends that the District Defendants failed to suspend Holt, failed to interview students and parents, failed to investigate Holt's insubordination, failed to exercise effective oversight, failed to warn students, failed to increase Holt's classroom monitoring, failed to report Holt's behavior to the appropriate authorities, and failed to follow the District's own policy. (D.I. 76 at 23-29) On each of these points, the Court agrees that the record shows a genuine dispute of material fact, necessitating resolution by a factfinder. A reasonable jury could find that the School District Defendants' responses to Holt's behaviors were grossly inadequate.
In support of his position, Plaintiff also provides the expert testimony of Carol Schreffler, a school administrator with thirty-five years' experience in the classroom and in administrative capacities in Delaware. (D.I. 78 at B486) According to Schreffler, Holt's behavior was "outrageous;" it was "very, very unusual and inappropriate behavior" that should have raised a "red flag." (D.I. 78 at B510) Schreffler further opines that Pinchin and Thompson's "lack of action" in supervising Holt was "so far from the accepted norms of school administration that it absolutely shows incompetent behavior." (Id. at 551)
In sum, application of the DTCA to the facts of record in this case requires that the School District Defendants' motion for summary judgment be granted with respect to Plaintiff's state law claim of negligence and denied with respect to Plaintiff's state law claim of gross negligence.
Count VI of Plaintiff's complaint alleges the District Defendants engaged in fraud: "Defendants falsely represented to the plaintiff that Holt was a teacher of integrity and worthy of Plaintiff's trust." (D.I. 77 at B14) The complaint goes on to allege that, "Defendants knew that representation was false, or it was made with reckless indifference to the truth." (Id.)
In order to survive summary judgment on their fraud claim, Plaintiff must show that the record contains sufficient evidence from which a reasonable juror could find each of the following elements:
Schmeusser v. Schmeusser, 559 A.2d 1294, 1297 (Del.1989).
It follows from all that has already been said in connection with Plaintiff's Section 1983 claim that his fraud claim must fail, at least for the reason that there is insufficient evidence in the record to conclude that the School District Defendants knew or believed (prior to Holt sexually abusing Plaintiff) that Holt was abusing and harassing Plaintiff (which would thereby render false their implicit representation to the contrary).
Plaintiff relies on a Delaware Superior Court case to support his theory that holding an employee out as trustworthy is tantamount to a fraudulent misrepresentation. See McClure v. Catholic Diocese of Wilmington, Inc., 2008 WL 495863 (Del.Super.Ct. Jan. 9, 2008). In McClure, however, the plaintiff produced evidence that the defendant Church "knew the priest was abusing children and yet continued to hold him out to the community as an authority figure worthy of trust." Id. at *2. Here, as already noted, there is no evidence that the School District Defendants knew Holt was sexually abusing Plaintiff until after she did so in late March 2006.
Accordingly, the Court will grant summary judgment to the School District Defendants on Plaintiff's fraud claim.
Finally, Plaintiff also alleges a novel theory of liability based on the "special relationship" between public school administrators and their students. Specifically, Plaintiff contends that the School District Defendants "owed fiduciary duties" to the District's students, including Plaintiff, duties which the School District Defendants "grossly breached." (D.I. 76 at 37) Both parties concede that this is an issue of first impression in Delaware. (Id. at 38; D.I. 70 at 34)
Little more need be said about Plaintiff's breach of fiduciary duty claim beyond the undisputed fact that Plaintiff can cite to no authority for recognizing this theory under Delaware law. This Court's task is to determine whether the Delaware Supreme Court would permit a breach of fiduciary duty claim to be pressed against members of a public school board and a public school district superintendent. See generally DeWeerth v. Baldinger, 38 F.3d 1266, 1273 (2d Cir.1994) ("When confronted with an unsettled issue of state law, a federal court sitting in diversity must make its best effort to predict how the state courts would decide the issue."). Plaintiff provides no basis for predicting that the Delaware Supreme Court would accept Plaintiff's invitation to be the first state to recognize a fiduciary relationship between a public school district and its students.
Here, Plaintiff does not allege that there is a "confidential" relationship of any sort, nor does Plaintiff allege that there is a special relationship of dependency between him and the School District Defendants. While there may be, as Plaintiff contends, cases from other states that recognize a "special relationship" between public schools and their students (D.I. 76 at 38 n. 27), none of these cases explicitly identify a fiduciary relationship, nor state that a student may pursue civil litigation for breach of such a fiduciary relationship.
The Court concludes that Delaware law does not recognize a fiduciary relationship between a public school district and its students. Consequently, the Court will grant summary judgment to the School District Defendants on Plaintiff's claim for breach of fiduciary duty.
For the foregoing reasons, the Court will grant the School District Defendants' motion for summary judgment with respect to all claims except for Plaintiff's state law claim for gross negligence. An appropriate order accompanies this Opinion.
At Wilmington, this 30th day of December, 2010, for the reasons set forth in the Opinion issued this same date,
1. The School District Defendants' Motion for Summary Judgment on All Counts (D.I. 69) is GRANTED IN PART and DENIED IN PART.
The way in which a state-created danger theory interacts with the theory of deliberate indifference is a source of some confusion. See Sanford v. Stiles, 456 F.3d 298, 310 (3d Cir.2006) (noting that Third Circuit has not explicitly confronted this question). Furthermore, although Plaintiff is not entirely clear, the Court understands Plaintiff to be asserting the state-created danger theory as against the School District Defendants in their official, as opposed to individual, capacities.