ROBERT E. WIER, Magistrate Judge.
Defendants—the Kentucky Department of Education (KDE), Kentucky School for the Deaf (KSD),
On February 4, 2014, two KSD students and dormitory roommates, J.B.F. (then age 20) and J.B., engaged in sexual acts in their shared dorm bathroom. There is evidence in the record to support either that the acts were consensual or nonconsensual. Compare DE ##18-4 & 18-5 (Michael Jamison, dorm team leader, contemporaneously characterizing the occurrences as "Consensual sexual activities"), DE #18-6 (Haun letter to Stivers expressing same), and DE #18-8 (contemporaneous notes stating, "forced? willing? said willing. embarrassed"), with, e.g., DE #18-1 (J.B.F. Depo.), at 32 ("At any time did you consent or tell J.B. that was okay? No.").
Beside the limited documentation from the school, the proof mostly consists of J.B.F.'s and Stivers's depositions. J.B.F. described the events leading up to the incident. While a student at KSD, J.B.F. "wanted to be roommates with J.B." DE #18-1 (J.B.F. Depo.), at 12. J.B.F. generally stated that two other students (not J.B.) had been mean to him previously (which he had told to someone at KSD). Id. at 15-16. J.B.F. agreed that before the incident, he had never told anyone at KSD that he was afraid of J.B. Id. at 45. Stivers confirmed. DE #18-2, at 24. Following a free-flowing deposition exchange, the following picture emerged of J.B.F.'s version of events:
On February 4, 2014, by around 4:15 p.m., J.B.F. had returned to his dorm after finishing in workshop and concluded showering. He re-dressed in the bathroom and slightly cracked the bathroom door to let steam out. J.B.—his roommate—then came into the bathroom and looked up pornography on his phone. Both students left the bathroom. Apparently, at that time, J.B.F. left the dorm room, walked down the hallway, and alerted Jamison
While J.B.F.'s deposition reflects considerable confusion concerning the precise sequence, J.B.F. indicated that J.B. asked him to have sex while they were in the living room after returning from Jamison's office. J.B.F. declined. At some point, J.B.F. and J.B. moved into the bedroom. There, J.B. said he wanted to punch J.B.F. J.B. then went into the bathroom while J.B.F. stayed in the bedroom. J.B. later returned to the bedroom and again said that he wanted to have sex. J.B. then physically grabbed J.B.F.'s arm and pulled him into the bathroom. J.B.F. said both that he tried to escape (physically tried to get out) (DE #18-1, at 17, 27) and that he did not try to fight J.B. off (id. at 26). J.B. directed J.B.F. to perform oral sex and engage in anal sex; J.B.F. declined. J.B. then said he wanted to kill J.B.F. and used a key as a weapon. J.B. punched J.B.F. with the key in the chest three times. J.B. had locked the bathroom door, and J.B.F. unsuccessfully tried to open it. By that point, J.B. was naked, but J.B.F. initially remained clothed, although he said that J.B. "pulled [his] underwear down." Id. at 28. Ultimately, J.B.F. performed oral sex on J.B., and the two engaged in anal sex. J.B.F. testified that, contrary to the school's reports, he did not consent to the acts.
At around 4:30 p.m. (a total elapsed time of fifteen minutes since J.B.F.'s return to the dorm from workshop),
Jamison, however, summarized the incident as follows:
DE #18-4. The contemporaneous handwritten notes indicate that J.B.F. changed the story of what happened multiple times—"at 1st denied [line break] admitted `yes' . . . [line break] anal sex yes [line break] no anal sex [line break] [J.B.F.] later said no anal then yes." DE #18-8, at 1.
There is evidence that KSD officials attempted to contact Stivers very soon after the incident. See, e.g., DE ##18-4 (Incident Report Form on J.B.F. with "Parent contacted" box checked on 2/4/14 and handwritten note stating, "left message to call back. . . Jamison called left message several times to call back"); 18-8 (Notes), at 2 ("M.J. [presumably, Jamison] tried to contact aunt as he reported. left message") and 3 ("M.J. called aunt left message."). An email indicates that Jamison made a "third attempt" to call Stivers at 8:27 p.m. on February 6, 2014. DE #20-2. Jamison indicated that he got her machine for the third time that day and "left another message[.]" Id. Further, J.B.F. testified that he told Stivers of the incident the Friday after it happened. DE #18-1, at 42. Haun indisputably sent the letter informing Stivers of the disciplinary action on March 4, 2014—a month following the incident. DE #18-6 (Letter).
Marilyn Stivers is the legal guardian of J.B.F. DE #1-1 (Complaint), at ¶ 2. Stivers, in her deposition, had no "reason to believe that there were any altercations, harassment, abuse between [J.B.F.] and J.B. prior to the February 2014 incident[.]" DE #18-2, at 25. Stivers described receipt of the KSD letter as her first notice of the incident. She expressly stated that J.B.F.'s testimony that he notified her of the incident the Friday after it occurred was false. Id. at 28-29. After receiving the letter, she confronted J.B.F., who described the incident to her and said that KSD staff ("they") said that J.B.F. was "guilty." Id. at 27. She said [and mostly this is hearsay] that both students were "taken to the office in the same office at the same time sitting in the same room to be questioned." Id. at 28. She denied knowledge of KSD's attempts to call her: "There was nothing on my home phone, and I've always told them to call my cellphone. The home phone is just for Internet only. There was no messages [sic] on my phone." Id. at 33-34.
Stivers testified that she did think that KSD intended to harm J.B.F. Id. at 55 ("Because the incident happened in March and I was not notified until February,[
The underlying J.B.F.—J.B. incident, along with Defendants' actions preceding and following it, gave rise to this case. J.B.F., by and through Stivers, his guardian, sued, alleging four claims: (1) § 1983/Equal Protection Clause violations; (2) negligence; (3) negligent supervision/hiring; and (4) intentional infliction of emotional distress (IIED). See DE #1 (Complaint). Following a period of discovery, Defendants moved for summary judgment on all claims, and the matter is fully briefed. DE ##20 (Motion), 25 (Response), 27 (Reply).
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 F.3d at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp., 106. S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, "Rule 56(c) mandates the entry of summary judgment . . . 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." Celotex Corp., 106 S. Ct. at 2552; see also id. at 2557 (Brennan, J., dissenting) ("If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." (emphasis in original)).
A fact is "material" if the underlying substantive law identifies the fact as critical. Anderson, 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511; Matsushita Elec. Indus. Co., 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 F. App'x 428, 444-45 (6th Cir. 2006).
Defendants advance a variety of arguments to avoid liability, mostly centered on various immunity defenses.
First, Defendants argue that they are entitled to immunity from Plaintiff's § 1983/Equal Protection claim. DE #20, at 4-5. Plaintiff opposes. DE #25, at 6-9.
"[A] state agency may not be sued in federal court, regardless of the relief sought, unless the state has waived its sovereign immunity or Congress has overridden it." Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991) (granting the Kentucky Cabinet for Human Resources immunity); see also Ferritto v. Ohio Dep't of Highway Safety, 928 F.2d 404, 1991 WL 37824, at *2 (6th Cir. Mar. 19, 1991) (per curiam) ("The Eleventh Amendment prohibits actions against states and state agencies under section 1983 and section 1985."). "The Eleventh Amendment bars a suit against a state or one of its agencies in federal court unless the state has given express consent, regardless of the relief sought. . . . Kentucky has not waived its immunity." Adams v. Morris, 90 F. App'x 856, 857 (6th Cir. 2004). "Eleventh amendment immunity extends to state agencies that act as arms of the state, but does not extend to cities, counties, or other political subdivisions of the state." Creager v. Bd. of Educ. of Whitley Cnty., Ky., 914 F.Supp. 1457, 1460 (E.D. Ky. 1996).
Here, KDE is obviously a state agency and an arm of the state. It is one of Kentucky's principle governmental departments. The Kentucky Board of Education governs it. KRS 156.029(7); see also KRS 156.010; KRS 156.035. The General Assembly explicitly called the KDE a "state agency[.]" KRS 156.010(5). The law is clear that a "state agency may not be sued in federal court, regardless of the relief sought, unless the state has waived its sovereign immunity or Congress has overridden it." Whittington, 928 F.2d at 193. Plaintiff points to no waiver or congressional override of immunity. See Adams, 90 F. App'x at 857 ("Kentucky has not waived its immunity."). Indeed, the Kentucky General Assembly expressly disclaimed any immunity waiver as to the Kentucky Board of Education, the KDE, or their officers, agents, or employees. KRS 156.035(3)(c). KDE is thus entitled to immunity from the federal charge.
Second, KSD is "directly operated by the state" and is a subdivision of the KDE. Eva N. v. Brock, 741 F.Supp. 626, 630 (E.D. Ky. 1990); see also KRS 156.010(1)(d); KRS 156.070(1); KRS 167.015(1) ("[T]he Kentucky School for the Deaf at Danville, Kentucky, shall be managed and controlled by the Kentucky Board of Education."); KRS 167.150 (authorizing the Kentucky Board of Education to "prescribe admission policies, curriculum, and rules for the government and discipline of pupils" at KSD and "and fix and regulate tuition fees and terms of admission of [out-of-state] pupils"). As a mere subdivision of the state-agency Department, KSD is also immune from suit. Kentucky law indicates that KSD is dependent part of KDE, Hall, 742 F.2d at 302, and it appears that, as such, any judgment against KSD would be paid out of the Commonwealth's treasury, id. Under the same principles, KSD is likewise entitled to immunity from the federal charge.
Courts have regularly recognized that state boards of education, contrasted with local boards, equate to the state itself and thus receive immunity. See, e.g., Workman v. Mingo Cnty. Schools, 667 F.Supp.2d 679, 685 (S.D. W. Va. 2009) ("State boards of education[] are widely recognized as entitled to Eleventh Amendment protection.") (citing Cullens v. Bemis, 979 F.2d 850, 1992 WL 337688, at *1 (6th Cir. Nov. 18, 1992) (table) (stating that the Michigan Department of Education is "absolutely immune under the Eleventh Amendment"); COPE v. Kansas State Bd. of Educ., 71 F.Supp.3d 1233, 1241 (D. Kan. 2014) (dismissing Kansas State Department of Education and State Board of Education per Eleventh Amendment). Here, Kentucky's education department and KSD, a school it runs via the state board, are defendants and clearly fall within the shroud of immunity.
The Eleventh Amendment similarly bars damages claims against state officials sued in an official capacity. See Kentucky v. Graham, 105 S.Ct. 3099, 3107 (1985) ("This [Eleventh Amendment] bar remains in effect when State officials are sued for damages in their official capacity."). Further, a defendant sued in his official capacity for monetary damages is not considered a "person" subject to suit under § 1983. See Will v. Mich. Dep't of State Police, 109 S.Ct. 2304, 2312 (1989) (concluding that a state, its agencies, and its officials sued in their official capacities for monetary damages are not considered persons for the purpose of a § 1983 claim); Thomas v. Noder-Love, 621 F. App'x 825, 831 (6th Cir. 2015) ("It is also well-settled that [Eleventh Amendment] . . . immunity applies to claims under § 1983, meaning that states and state officials sued in their official capacity are not considered `persons' under § 1983 and, therefore, cannot be sued for money damages without the state's consent."). "Section 1983 claims are not cognizable against state officials sued in their official capacity." Doe v. Patton, 381 F.Supp.2d 595, 598 (E.D. Ky. 2005) (emphasis removed). Based on these principles, Haun in his official capacity is plainly entitled to immunity from the federal claim. As a state official sued in his official capacity, he is not subject to this § 1983 claim. Will, 109 S. Ct. at 2312.
In sum, Eleventh Amendment immunity shields the Kentucky Department of Education, the Kentucky School for the Deaf, and Haun in his official capacity from the § 1983 claim.
The Court generally applies "Kentucky governmental immunity law to [Plaintiff]'s state law claims." Shepherd v. Floyd Cnty., 128 F.Supp.3d 976, 980 (E.D. Ky. 2015); see Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680-81, 685 (6th Cir. 2007) (applying federal immunity standard to federal claim and Michigan immunity standard to state law claim); Chesher v. Neyer, 477 F.3d 784, 796-97 (6th Cir. 2007) (applying Ohio immunity rules to Ohio-law claims); Doe v. Magoffin Cnty. Fiscal Court, 174 F. App'x 962, 971-72 (6th Cir. 2006) (applying Kentucky immunity law to Kentucky-law claims). There is no shortage of Kentucky decisions explicating the boundaries of state-law-based immunity. In fact, questions of immunity have "vexed the courts of the Commonwealth for decades." Coppage Constr. Co., Inc. v. Sanitation Dist. No. 1, 459 S.W.3d 855, 859 (Ky. 2015). In the context of this case, however, the boundaries are relatively straightforward.
In general, "a state agency is entitled to immunity from tort liability to the extent that it is performing a governmental, as opposed to a proprietary, function." Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001); Jones v. Cross, 260 S.W.3d 343, 345 (Ky. 2008) (same).
Here, as to KSD in particular, the calculus is even stronger. The School carries a sweeping mandate, apart from the education of its students. It "also serve[s] as the Statewide Educational Resource Center on Deafness[.]" KRS 167.015(2). This underscores KSD's palpable governmental function. The underlying legal principle is clear: "Governmental immunity extends to state agencies that perform governmental functions (i.e., act as an arm of the central state government) and are supported by money from the state treasury." Autry v. W. Ky. Univ., 219 S.W.3d 713, 717 (Ky. 2007) (finding that "WKU is a state agency because it serves as a central arm of the state performing the essential function of educating state citizens at the college level and because it receives money from the state treasury in support of this function" and holding that "WKU clearly is entitled to governmental immunity").
Based on these principles, KDE, and as a state subdivision, KSD, are entitled to state-law immunity from the state-law claims. See Williams v. Ky. Dep't of Educ., 113 S.W.3d 145, 154 (Ky. 2003) ("Appellants could have sued the DOE . . . except for the fact that [it is] shielded from liability by governmental immunity."); see also Franks v. Ky. Sch. for the Deaf, 956 F.Supp. 741, 749 (E.D. Ky. 1996) (dismissing, on immunity grounds, Kentucky-law negligence claims of failure to provide adequate security and supervision, as well as failure to exercise reasonable care for the safety of students), aff'd 142 F.3d 360 (6th Cir. 1998).
As to Haun in his official capacity, multiple levels of immunity bar the tort claims. First, "Eleventh Amendment immunity . . . bars any pendent state-law claims brought against state officials in their official capacity." Thomas, 621 F. App'x at 831. "With respect to the state law claims against the defendant officials in their official capacity, the Eleventh Amendment provides immunity from suit in federal court." Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 520 (6th Cir. 2007). This is so because "a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when—as here—the relief sought and ordered has an impact directly on the State itself." Pennhurst State Sch. & Hosp. v. Halderman, 104 S.Ct. 900, 917 (1984). "[A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment." Id. at 919. Additionally, Kentucky also extends immunity to Haun in his official capacity in these circumstances. See, e.g., Yanero, 65 S.W.3d at 522 ("[W]hen an officer or employee of a governmental agency is sued in his/her representative capacity, the officer's or employee's actions are afforded the same immunity, if any, to which the agency, itself, would be entitled[.]"); Autry, 219 S.W.3d at 717 ("If a state agency is deemed to have governmental immunity, its officers or employees have official immunity when they are sued in their official or representative capacity."); Jones, 260 S.W.3d at 345 ("[O]fficial immunity is absolute when an official's or an employee's actions are subject to suit in his official capacity."). Based on these clear and controlling principles, Haun in his official capacity is thus entitled to immunity from the remaining state law claims.
In sum, the Kentucky Department of Education, the Kentucky School for the Deaf, and Haun in his official capacity all enjoy immunity regarding the state charges.
"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982)). Under the well-established two-step approach, the Court "consider[s] (1) whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right and (2) whether the right at issue was clearly established at the time of defendant's alleged misconduct, although not necessarily in this order." Wenk v. O'Reilly, 783 F.3d 585, 593 (6th Cir. 2015) (internal quotation marks and alterations removed); see also Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 493-94 (6th Cir. 2008) (same two-part test). The Court must avoid "a high level of generality" in assessing the clarity of the right or misconduct. Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam) ("The dispositive question is whether the violative nature of particular conduct is clearly established. . . . This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition." (internal quotation marks omitted) (citing Brosseau v. Haugen, 125 S.Ct. 596 (2004))). In the summary judgment context, the Court "view[s] all evidence, and draw[s] all reasonable inferences, in the light most favorable to the nonmoving party," here J.B.F. Kent v. Oakland Cnty., 810 F.3d 384, 390 (6th Cir. 2016) (internal alteration removed). "Once a defendant invokes qualified immunity, the plaintiff bears the burden of showing that (1) the defendant's acts violated a constitutional right and (2) the right at issue was clearly established at the time of the defendant's alleged misconduct." Barber v. Miller, 809 F.3d 840, 844 (6th Cir. 2015). Qualified immunity is immunity from suit itself. Pearson, 129 S. Ct. at 815.
Here, the facts that Plaintiff alleges do not make out a constitutional violation by Haun. J.B.F.'s particular theory is exclusively grounded in the Fourteenth Amendment's Equal Protection Clause. See DE #1-1, at ¶ 38.
"The Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike." Foster v. Michigan, 573 F. App'x 377, 396 (6th Cir. 2014) (internal quotation marks removed). The Sixth Circuit has described the contours:
Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 256 (6th Cir. 2015) (en banc) (quoting Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011)) (alterations removed). "The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." S.S. v. E. Ky. Univ., 532 F.3d 445, 457 (6th Cir. 2008). "In determining whether individuals are `similarly situated,' a court should not demand exact correlation, but should instead seek relevant similarity." Id. (quoting Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 987 (6th Cir. 2012). Finally, "[d]isabled persons are not a suspect class for purposes of an equal protection challenge." S.S., 532 F.3d at 457. Plaintiff does not assert a burden on a fundamental right.
It is obvious, on this record, that no constitutional violation occurred. Plaintiff puts forward no proof that the government treated J.B.F. differently than other similarly situated persons or that any different treatment lacked a rational basis. Indeed, Stivers admitted that she was unaware of any differential treatment:
DE #18-2, at 60. There is simply no indication in this record that the Commonwealth— through KDE, KSD, or Haun—treated J.B.F. differently than similarly situated individuals. Because there is no constitutional right violation, there is no underlying basis for liability, and Haun in his individual capacity is entitled to qualified immunity on the federal claim. Pearson, 129 S. Ct. at 815.
Perhaps Plaintiff's equal protection theory is one relating to Haun's response to student-on-student harassment, which the Sixth Circuit recognizes in certain situations can violate the Equal Protection Clause. See, e.g., Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App'x 348, 356-57 (6th Cir. 2014). To establish an equal protection violation under this theory, Plaintiff must "show either that [Haun] intentionally discriminated or acted with deliberate indifference." Id. at 357; see also Stiles ex rel. D.S. v. Grainger Cnty., Tenn., ___ F.3d ___, ___, No. 15-5438, 2016 WL 1169099, at *12 (6th Cir. Mar. 25, 2016) ("The Sixth Circuit recognizes two methods of proving an equal protection violation based on a school official's response to peer harassment: (1) disparate treatment of one class of students who complain about bullying as compared to other classes of students, . . . and (2) deliberate indifference to discriminatory peer harassment[.]"). Deliberate indifference, in this context, "is a clearly unreasonable response in light of the known circumstances." Shively, 579 F. App'x at 357 (internal quotation marks omitted). Proceeding under a deliberate indifference theory requires a plaintiff to prove "that he was subjected to discriminatory peer harassment." D.S., 2016 WL 1169099, at *12.
J.B.F. does not explicitly raise such a theory or argument, but, regardless, it plainly fails. Plaintiff offers nothing to suggest either that Haun intentionally discriminated against J.B.F. in the response to the February — incident or that Haun acted with deliberate indifference in his response to the incident. Haun's actions following the events were not "clearly unreasonable . . . in light of the known circumstances." As the Court explains elsewhere in this opinion, nothing shows prior notice to Haun of any threat, concerning information, or other intelligence signifying to Haun that J.B. would pose a threat to J.B.F. Haun (and other KSD actors) immediately responded to the situation, separated and interviewed the students, and instituted remedial actions. They apparently made several unsuccessful attempts to contact Stivers. While Stivers may have deeply-held concerns over Haun's (and the School's) response, nothing about it was "clearly unreasonable." Plaintiff alleges nothing about Haun's pre-assault conduct that amounts to deliberate indifference. Haun does not come into the picture until post-incident, and there is nothing to suggest Haun failed to take steps that effectively eliminated any further impropriety. J.B.F. does not show that Haun failed to enforce any school policy or departed from established practices in his treatment of J.B.F. Haun thus was not deliberately indifferent to J.B.F., and there was thus no Equal Protection Clause violation. See D.S., 2016 WL 1169099, at *13 ("[Defendants] promptly investigated each incident of which they were aware, and each took measures within their power to punish the students found culpable and to prevent further episodes of mistreatment. A reasonable jury could not find these actions exhibited deliberate indifference to [Plaintiff]'s claims of discriminatory harassment.").
Autry, 219 S.W.3d at 717 (citations removed). Yanero set the boundaries:
65 S.W.3d at 522-23 (citation omitted). Kentucky recently confirmed the contours:
Jones, 260 S.W.3d at 345 n.1 (internal quotation marks, citations, and alterations removed).
Accordingly, public officials are generally not liable for "bad guesses in gray areas." Caneyville Volunteer Fire Dep't, 286 S.W.3d at 810. Thus, "in order to charge liability, a complainant may not merely allege injury, but must point to a causally related [v]iolation of a constitutional, statutory, or other clearly established right, or produce some proof that the action was not in good faith[.]" Id. (internal quotation marks and citations removed); see also id. ("[A] judgment call by a fire chief as to how, with what assistance, and in what manner to extinguish a fire is the very definition of a discretionary act.").
Marson v. Thomason, 438 S.W.3d 292, 296 (Ky. 2014) (citations removed; emphasis in original). The analysis looks to the dominant nature of the act at issue. Slattery v. J.F., ___ S.W.3d ___, No. 2013-CA-830-MR, 2015 WL 3424794, at *5 (Ky. Ct. App. May 29, 2015) ("Negligent supervision in the public school setting has been held to be both discretionary and ministerial based upon varying facts and circumstances.") (granting teachers qualified immunity and comparing cases); Haney v. Monsky, 311 S.W.3d 235, 240-41, 243-45 (Ky. 2010) (enforcing instruction to "keep the children in the middle of the path" was discretionary because it was a "general and continuing supervisory duty" that "depended upon constantly changing circumstances," "was largely subjective," and "left to the will or judgment of the performer" because it could be done in two or more lawful ways). Qualified immunity "is more than just a defense; it alleviates the employee's or officer's need even to defend the suit, which is to be dismissed." Marson, 438 S.W.3d at 298.
Here, Haun plainly performed discretionary acts. A KSD school safety officer obviously must deliberate and employ his judgment when making decisions. In a fluid and evolving situation, such as investigating the J.B.F.—J.B. interaction here, the course of action will not be absolute, certain, and imperative, and the facts are not fixed— indeed, they develop before the officer's eyes. See, e.g., DE #18-8, at 1 (narrating J.B.F.'s contemporaneous changes to the story). The facts and the situation are indeterminate, and Haun is required to react on the fly to changing circumstances. Haun does not merely obey orders of others. Cf. James v. Wilson, 95 S.W.3d 875, 909-10 (Ky. Ct. App. 2002) (categorizing teachers' conduct as discretionary because it "inherently required conscious evaluation of alternatives, personal reflection and significant judgment"). Haun, too, must (and did here) personally reflect, evaluate alternatives, and exercise significant judgment.
Here, Haun clearly did not perform a "ministerial task of enforcing a known rule," such as, in Yanero, instructing students to wear batting helmets or, in Marson, extending bleachers each morning. Cf. id. at 910; see also id. (stating that the teachers' "judgment may arguably be questionable, particularly with the benefit of hindsight, but applying such an unrealistic standard is not only unjust, it's unauthorized."); Turner v. Nelson, 342 S.W.3d 866, 876 (Ky. 2011) (finding teacher's supervisory actions discretionary and granting qualified immunity, stressing the importance of "appropriate leeway to . . . investigate complaints[,] . . . to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action"). Haun's role—like the principal in Marson and the teacher in Turner—is "so situation specific" and "requires judgment rather than a fixed, routine performance." See 438 S.W.3d at 299. Accordingly, "looking out for children's safety is a discretionary function. . . exercised most often by establishing and implementing safety policies and procedures." Id. (emphasis added).
As for the other qualified immunity elements, Plaintiff offers nothing to show that Haun acted in bad faith or that he violated any clearly established right. "Negligently performing, or negligently failing to perform, a discretionary act cannot give rise to tort liability[.]" Marson, 438 S.W.3d at 296. There is utterly no indication that Haun willfully or maliciously intended to harm Plaintiff. Rowan Cnty. v. Sloas, 201 S.W.3d 469, 481 (Ky. 2006). Further, there is no dispute that Haun acted within the scope of employment when he investigated and took the actions at issue in this case. Accordingly, because Haun's actions were discretionary, made in good faith, and within the scope of his employment, he is entitled to qualified immunity. Autry, 219 S.W.3d at 717. He can thus face no liability on the state charges, and the Court must dismiss them. Marson, 438 S.W.3d at 298.
Although Haun individually is entitled to qualified immunity for the reasons set forth above, the Court alternatively analyzes the merits.
In Kentucky, to establish negligence, a plaintiff must prove "that (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached the standard by which his or her duty is measured, and (3) consequent injury." Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). "`Consequent injury' consists of what hornbooks separate into two distinct elements: actual injury or harm to the plaintiff and legal causation between the defendant's breach and the plaintiff's injury." Id. at 88-89.
Haun mainly protests foreseeability under the applicable Williams duty. DE #20, at 6-7. Plaintiff's particular negligence theory is that Haun failed to protect J.B.F. from harassment, abuse, assaults, and discrimination. DE #1-1, at ¶¶ 40, 53. Plaintiff, in the negligence section of his brief, fails to mention a single factual basis for the claim as to Haun. DE #25, at 15-16 (after four paragraphs of law, stating "Defendant Haun is just as responsible for the negligent acts" but not identifying what those acts are). There is simply no basis for a negligence finding here, as the record, in the light most favorable to J.B.F., makes clear. Simply put, on this record, the J.B.F.—J.B. incident was not foreseeable or chargeable to Haun.
J.B.F. explicitly said that he initially wanted to be roommates with J.B. J.B.F. had reported to an unnamed KSD official that two other students—not J.B.—had previously been mean. This report did not concern J.B. whatsoever. Stivers had no reason to believe there were altercations, harassment, or abuse between J.B.F. and J.B. prior to the February 2014 incident. She also had no knowledge of any such occurrences following the incident.
On the date in question, J.B.F. alerted Jamison and Yance—not Haun—that J.B. had accessed pornography on his phone. While accessing pornography may breach KSD rules, this report alone does not put any KSD official (certainly not Haun) on alert that J.B. would imminently sexually assault J.B.F. It does not suggest personally aggressive behavior. After the bathroom incident occurred, KSD officials, including Haun, investigated and interviewed the students and instituted remedial actions. They separated the students, and evidence indicates that they made several unsuccessful attempts to contact Stivers.
The posture as to Haun is particularly weak, as to any culpability, because he had little involvement in the actual incident—at most, he made notes and interviewed the students as part of an investigation afterward. See DE #20-1, at Answers to I9 and 10. Jamison and Yance were the primary KSD actors as the events unfolded. Regardless, there is simply no basis to find that Haun could or did foresee J.B. allegedly sexually assaulting J.B.F. There were no prior incidents between J.B.F. and J.B. to notify Haun of potential future trouble.
Haun's basic duty was to take reasonable steps to prevent foreseeable harm to J.B.F. Williams, 113 S.W.3d at 148. This record indicates that Haun did just that. The incident was not foreseeable, and, thus, Haun owed no duty to J.B.F. to reasonably prevent it.
As a starting point, "an employer can be held liable when its failure to exercise ordinary care in hiring or retaining an employee creates a foreseeable risk of harm to a third person." Oakley v. Flor-Shin, Inc., 964 S.W.2d 438, 442 (Ky. Ct. App. 1998). "[A]n employer may be held liable for the negligent supervision of its employees only if he or she knew or had reason to know of the risk that the employment created." Carberry v. Golden Hawk Transp. Co., 402 S.W.3d 556, 564 (Ky. Ct. App. 2013); see also Booker v. GTE.net LLC, 350 F.3d 515, 517 (6th Cir. 2003) ("Kentucky law recognizes that an employer can be held liable for the negligent supervision of its employees."). Kentucky conflates the negligent training and negligent supervision standards. Carberry, 402 S.W.3d at 564 (setting forth same standard for "negligent training and supervision"); Southard v. Belanger, 966 F.Supp.2d 727, 744-45 (W.D. Ky. 2013).
The Court can make quick work of this thin claim. Haun persuasively argues against the tort's applicability to him, DE #20, at 8, and Plaintiff's brief offers no specific argument as to the negligent training/supervision allegation. DE #25, at 15-16. Haun says the he "was not charged with supervising or training the KSD staff responsible for the dormitory where the February 4, 2014 incident occurred. That is, Haun had no ministerial duty to train or supervise KSD dorm staff. Furthermore, Haun was not involved in the hiring process for those individuals." DE #20, at 8. Plaintiff does not contest these statements. There is also no suggestion that Haun is "an employer," as Kentucky law requires.
S.S., 532 F.3d at 459 (alteration removed). In Kentucky, this tort is a "gap-filler providing redress for extreme emotional distress in those instances in which the traditional common law actions did not." Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky. Ct. App. 1993) (internal quotation marks removed); Papa John's Int'l, Inc. v. McCoy, 244 S.W.3d 44, 49 (Ky. 2008) (describing the "outrageous conduct claim" as "a so-called gap-filler"); Bennett v. Malcomb, 320 S.W.3d 136, 137 (Ky. Ct. App. 2010). The torts of outrage and IIED are the same. Green v. Floyd Cnty., 803 F.Supp.2d 652, 655 n.1 (E.D. Ky. 2011). "The tort of outrage is still a permissible cause of action, despite the availability of more traditional torts, as long as the defendants solely intended to cause extreme emotional distress." Id. "It is for the court to decide whether the conduct complained of can reasonably be regarded to be so extreme and outrageous as to permit recovery." Goebel v. Arnett, 259 S.W.3d 489, 493 (Ky. Ct. App. 2007).
The IIED allegation fails for several reasons. First, Plaintiff offers no proof that Haun's conduct was "outrageous and intolerable" or that "it offends against the generally accepted standards of decency and morality." Osborne, 31 S.W.3d at 914. Plaintiff's specific argument appears to focus on the one-month delay in letter receipt and "Haun's failure to take remedial action." DE ##18-2, at 54; 25, at 15. School officials immediately responded to and investigated the incident. Officials separated the students, and no further impropriety occurred between J.B. and J.B.F. The evidence indicates that officials made numerous attempts to contact Stivers, which Plaintiff does not call into question. This, little of which involved Haun anyway, is a far cry from "outrageous and intolerable" conduct that offends generally accepted standards of decency and morality. The IIED tort requires "more than bad manners" and "hurt feelings." Childers v. Geile, 367 S.W.3d 576, 581 (Ky. 2012). It is "grounded in harassing and abusive behaviors[.]" Id. It does not cover conduct that is "cold, callous, and lacking sensitivity." Goebel, 259 S.W.3d at 493. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, [a] case [resulting in liability] is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 789 (Ky. 2004), overruled on other grounds by Toler v. Sud-Chemie, Inc., 458 S.W.3d 276 (Ky. 2015) (regarding substantive defamation requirements); see also Stringer, 151 S.W.3d at 789-90 (comparing factual scenarios where courts found and did not find outrageousness).
Plaintiff here presents nothing of the sort that qualifies under the Kentucky standard. Immediately responding to and remedying a situation, attempting to contact the guardian, guaranteeing no future incidents, and mailing a letter approximately 30 days later, even if all involving Haun, simply is not "outrageous and intolerable" and does not offend generally accepted standards of decency and morality. Neither letter receipt 30 days after an incident, nor any of Haun's actions, in these circumstances, would lead an average member of the community to exclaim, "Outrageous!," go beyond all possible bounds of decency, or invoke the truly outrageous or utterly intolerable in a civilized community.
Additionally, while "a plaintiff cannot maintain both a negligence claim and an intentional infliction of emotional distress claim based on a single set of facts," Childers, 367 S.W.3d at 581 (emphasis in original),
Finally, Plaintiff offers no expert proof on the degree or cause of any emotional harm, another likely fatal flaw to any IIED theory here. See, e.g., MacGlashan v. ABS Lincs KY, Inc., 84 F.Supp.3d 595, 605 (W.D. Ky. 2015) (applying Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012) to IIED claim: "This Court joins the latter group in holding Osborne's requirement for expert testimony is limited to NIED and intentional infliction of emotional distress claims."); see also, e.g., White v. Bourbon Cmty. Hosp., LLC, No. 5:14-CV-79-REW, 2016 WL 208303, at *9 (E.D. Ky. Jan. 15, 2016). The failure "to present sufficient affirmative evidence concerning any severe emotional distress" is "fatal to [an] IIED claim." Keaton, 436 S.W.3d at 545. For these reasons, even if Haun was not immune from suit, he did not actionably inflict emotional distress.
"The most sensitive nerve in the human body is the parental nerve." Eva N., 741 F. Supp. at 627 (Bertelsman, J., quoting Swinford, J.). This is surely no less true for a caring guardian such as Stivers. The Court is not unmindful of the potent human element present in this case, but however unfortunate the events leading to this suit may be, for the foregoing reasons, every claim against each Defendant fails as a matter of law. The Court thus fully
As a second example, this exchange occurred: "Did you touch any of J.B.'s private genital area while you all were in the shower room? No. You mentioned earlier that J.B. wanted you to perform oral sex for him? Yes. Did that actually ever happen in the shower room? Yes. It did? Yes. Okay. So did you perform oral sex on J.B., or did he perform oral sex on you? He did it on me. Okay. So J.B. put his mouth on your private genital area? No. Did you put your mouth on his private genital area? Yes." Id. at 28-29.
A third example: "Did you talk about this incident or encounter between you and J.B. with anybody other than Michael [Jamison]? No. You didn't discuss it with anybody else at the school? No. Did you ever talk to Yance about it. Yes." Id. at 39-40. Further, J.B.F. later stated that he also told Stivers. Id. at 41-42 ("Before the letter was sent to your aunt, did you tell her what happened? Yes. You did? Yes."). J.B.F. said this happened on the Friday immediately following the incident (i.e., February 7, 2014). Id. at 42.
Additionally, as expressed above, the bathroom—living room—bedroom— bathroom progression, in connection with J.B.F. and J.B. both leaving the dorm to visit Jamison and Yance, is far from clear. J.B.F. made no mention of the living room encounter after the deposition questioning brought out the Jamison interactions. J.B.F. did not initially mention the Jamison/Yance encounter—quite an important detail— when telling his story; it only came out toward the end of questioning. A general picture of J.B.F.'s remembrance emerges from the deposition, but significant murkiness remains.
