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Thorpe v. Breathitt County Bd. of Educ.

United States District Court, E.D. Kentucky, Central Division

March 21, 2014

CYNTHIA THORPE, as NEXT FRIEND and On behalf of D.T., a minor child, Plaintiff,

Order Filed: August 4, 2014

Decided March 20, 2014.

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For Cynthia Thorpe, Next Friend, D.T., a minor child, Plaintiff: Burley J. Foley, Jr., Croley, Foley & Smith, London, KY; Paul K. Croley, II, Croley & Associates, London, KY; William V. Meader, Hyden, KY.

For Breathitt County Board of Education, Arch Turner, Individually, Reggie Hamilton, Individually, Defendants: Jonathan C. Shaw, LEAD ATTORNEY, Michael J. Schmitt, Porter, Schmitt, Banks & Baldwin, Paintsville, KY.

For Charles Andrew Mitchell, Individually, Defendant: Neal Smith, Smith, Thompson & Carter, PLLC, Pikeville, KY.


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This matter is before the Court on a motion for summary judgment brought by defendants Breathitt County Board of Education, Arch Turner, and Reggie Hamilton. (DE 64). The Court will grant the motion in part and deny the motion in part.


In 2010 and 2011, D.T., a female minor, was a student at Sebastian Middle School in Breathitt County, Kentucky. (DE 1, p.7). There, D.T. was defendant Charles Mitchell's former student. (DE 1, p.7). Plaintiff Thorpe, on behalf of her minor child D.T., alleges that beginning in late 2010 and continuing into 2011, Mitchell made sexual advances toward D.T., " including but not limited to grossly inappropriate touchings, flirtations, email transmittal of pornographic material depicting his genitalia and constant text messaging inducing her to engage in sexual intercourse." (DE 1, p.7). Thorpe alleges that " [m]any of the sexual advances occurred during school hours in school buildings and classrooms or during school functions outside the school building." (DE 1, p.7). It is also alleged that the relationship eventually led to D.T. and Mitchell engaging in sexual intercourse in Mitchell's classroom. (DE 69, p.20). It is undisputed that D.T.'s relationship with Mitchell ended when D.T's friend accessed her Facebook account and showed another teacher sexually explicit exchanges between D.T. and Mitchell. On May 9, 2011, the same day that the explicit Facebook exchanges were discovered, Mitchell met with Superintendent of Breathitt County Schools, Arch Turner, the school district's technology coordinator, Phillip Watts, and Assistant Superintendent David Napier. (DE 62, p.187). Mitchell testified that Turner was extremely angry and stated that Mitchell had " done this again." (DE 62, p.188). Turner gave Mitchell the option of resigning or facing immediate termination. (DE 62, p.188). Mitchell resigned.

Thorpe alleges that prior to Mitchell's abuse of D.T., both the principal of Sebastian Middle, Reggie Hamilton, and Superintendent Turner, knew that Mitchell had sexually harassed other Sebastian Middle School female students. (DE 1, p.7). For example, in May 2010, Mitchell exchanged telephone texts with another female student at Sebastian Middle. (DE 62, p.33-34). When the child's parents discovered the text exchange, they met with Principal Hamilton to discuss the incident. (DE 68, p.8). Ritchie reported to Turner that Mitchell had texted A.R. 168 times in the course of less than eight hours, and messages were exchanged " up until 5:00 o'clock in the morning . . . [on] either a Friday night or Saturday night." (DE 68, p.6). Ritchie reported that A.R. was " creeped out" by the exchange even though A.R. claimed that Mitchell " never said anything out of the way." (DE 68, p.6).

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No one has ever seen the content of the text messages between A.R. and Mitchell, but A.R.'s parents later had a printout from the wireless company of the times and number of text messages exchanged between Mitchell and A.R. (DE 68, p.7). Ritchie recalls that Principal Hamilton responded to the A.R. texting incident by saying, " That's sick," and " You know what that pervert's got on his mind."

A short time later, on May 17, 2010, A.R.'s parents, Superintendent Arch Turner and Assistant Superintendent, David Napier, held a meeting in Turner's office. (DE 68, p.8, DE 70-1). Turner's secretary, Stacy McKnight, took notes at the meeting. (DE 60, p. 11; DE 70-1). The notes confirm that A.R. and Mitchell exchanged 168 text messages in a short period of time during " all hours of the night." (DE 70-1). McKnight's notes also indicate that Mitchell told A.R. that A.R.'s friend should break up with her boyfriend because she is " too pretty and too good of a girl for him." (DE 70-1). The notes also state that another female student texted A.R. for Mitchell to tell A.R. that Mitchell was upset about A.R. talking about him. (DE 60, p. 14). McKnight's notes further indicate that, " he [Mitchell] has texted T., B., E., and T.," other eighth grade girls. (DE 60, p. 14). According to Ritche, Superintendent Turner also expressed concerns about the A.R. incident, saying things to the effect of, " He's [Mitchell] sick -- he's a sick pervert. You know what he's got on his mind. I'll make sure, Rick, I'll take care of this. I'll put a stop to this right now." (DE 68, p.11). Ritchie responded by telling Turner that Mitchell was " going to end up raping somebody, if he ain't already done it." (DE 68, p.11). According to Ritchie, when Ritchie followed up with Turner a week or two later, Turner explained Mitchell's punishment and hurried Ritchie out of his office. (E 68, p.16).

In response to the allegations made by A.R.'s parents, Principal Hamilton and Superintendent Turner decided to suspend Mitchell for ten days without pay and put him on an unspecified 'improvement plan." (DE 70-2). In response to the A.R. incident, Mitchell drafted a letter denying any wrongdoing and noted, " I have done nothing wrong and would never dream of doing anything like they are suggesting." (DE 57-2). Although not written in the formal discipline letter, Hamilton and Turner repeatedly asked for a transcript of the text message exchange between Mitchell and A.R. (DE 57, p. 69). Mitchell was noncompliant with Hamilton's multiple requests to provide text transcripts of his conversations with A.R. (DE 57, p. 69). Hamilton admits that he never followed up to see if Mitchell had stopped texting students. (DE 57, p.68).

D.T.'s mother, Cynthia Thorpe, initiated the complaint on D.T.'s behalf on September 13, 2011, asserting various claims against the Board, Turner, Hamilton, and Mitchell. (DE 1). On March 22, 2013, the Court dismissed the official-capacity Section 1983 claims against Mitchell, Turner and Hamilton; the official capacity state law claims against Mitchell, Turner and Hamilton; and the state law claims against the Board. (DE 45). Now, the Board, Turner, and Hamilton move to dismiss Thorpe's Section 1983 claim against the Board, her Section 1983 claim against Turner and Hamilton individually, her Title IX claim against the Board, and her state law claims against Turner and Hamilton. The Court will address each claim in turn.


A. Legal Standard

Summary judgment is appropriate where the " movant shows that there is no

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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). The moving parties, here the Board, Turner, and Hamilton, bear the initial burden and must identify " those portions of the pleadings, depositions . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal citations omitted). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 322-25. Once the movant meets the initial burden, the opposing party " must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient " simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rule 56(e) " requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324. Summary judgment must be entered " 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, 477 U.S. at 322.

B. Section 1983 Claim Against the Board

In Count II of her complaint, Thorpe asserts that the Board violated D.T's Fourteenth Amendment right to be free from sexual abuse at the hands of public school employees. (DE 1). She asserts this claim under 42 U.S.C. § 1983. (DE 1). " A municipal liability claim against . . . the School Board must be examined by applying a two pronged inquiry: (1) Whether the plaintiff has asserted the deprivation of a constitutional right at all; and (2) Whether the County and/or the School Board is responsible for that violation." Doe v. Claibourne Cnty., 103 F.3d 495, 507 (6th Cir. 1996). D.T. is correct that she enjoys a constitutional right to be free from sexual abuse at the hands of public school employees, and she has properly asserted facts to support the deprivation of that right. See id. However, because the theory of respondeat superior is unavailable in Section 1983 claims, Thorpe has failed to establish that the Board violated D.T.'s constitutional right. See id. Under Monell, the Board cannot be found liable unless Thorpe " can establish that an officially executed policy, or the toleration of a custom within the school district leads to, causes, or results in the deprivation of a constitutionally protected right." Id. (emphasis added) (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Thorpe's Section 1983 claim against the Board asserts that the Board had an " unconstitutional custom" through failure to investigate, failure to supervise, failure to maintain adequate policies, failure to follow policies, and by manifesting an indifference towards sexual abuse. (DE 1). Essentially, Thorpe's claim focuses on the Board's failure to act. To state a claim against the Board under an " inaction" theory, Thorpe must establish:

(1) the existence of a clear and persistent pattern of sexual abuse by school employees;
(2) notice or constructive notice on the part of the School Board ;

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(3) the School Board's tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount ...

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