Davis v. Carmel Clay Sch.

RICKEY L. DAVIS, SHERONDA DAVIS next best friends of M.D., Plaintiffs, v. CARMEL CLAY SCHOOLS, Defendant.

No. 1:11-cv-00771-SEB-MJD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

Dated: September 30, 2013

ORDER ON PENDING MOTIONS

This cause is before the court on Plaintiffs' Motion for Sanctions Regarding Spoliation of Evidence [Docket No. 125], filed on December 5, 2012, and Defendant's Motion for Partial Summary Judgment [Docket No. 132], filed on December 7, 2012. Plaintiffs, Rickey Davis and Sheronda Davis, Next Best Friends of M.D., bring this case against Defendant Carmel Clay Schools ("the School"), pursuant to Title IX of the Education Amendments Act of 1972 and 42 U.S.C. § 1983, alleging that M.D. was subjected to unlawful peer-on-peer harassment that violated his substantive due process and equal protection rights and that the School failed to properly train its officials in recognizing and responding to sexual assault and harassment.¹ For the reasons detailedbelow, we DENY Plaintiffs' Motion for Sanctions and GRANT Defendant's Motion for Partial Summary Judgment.

Factual Background

I. Facts Related to Defendant's Summary Judgment Motion

In the fall of 2009, M.D. was a freshman at Carmel High School ("CHS") and acted as the manager of the freshman boys' basketball team. His grades prevented him from making the team in 2009, but the freshman basketball coach, Justin Blanding, agreed to help M.D. with his studies by overseeing his academic performance and assisting him with his assignments. Despite not being officially a team member, M.D. was encouraged to spend time around the team, and thus Jacob Sutton, the student manager of the varsity basketball team, assigned M.D. a locker in the basketball locker room. M.D. would change into his basketball clothes in the locker room before practices where he used his assigned locker to store his basketball clothes.

Locker Room Harassment

M.D. alleges that from November 2009 through January 2010, he was consistently harassed in the basketball locker room before and after practice by four senior basketball players: Robert Kitzinger, Scott Laskowski, Brandon Hoge, and Oscar Falodun. These four seniors allegedly "flashed" M.D., taunted him with sexual innuendos, grabbed his genitals, and "gooched" him, a term used to describe anal penetration by another person's fingers, either over a layer of clothes or with skin-to-skin contact. According to M.D.,the "gooching" occurred on at least two or three occasions and the other harassment occurred almost daily during that time period. Although he is not gay, M.D. believes the four seniors could have perceived him to be homosexual based on his habits and proclivities, but that he is "not necessarily sure." Id. at 30.

M.D. testified that the first "gooching" incident occurred after he told the basketball team that he had engaged in sexual intercourse with a girl in the varsity locker room shower. According to M.D., the assault lasted approximately five minutes and involved his being dragged to the shower, the perpetrators making an attempt to force his pants down, and finally being successively "gooched" through his clothes by all four seniors. M.D. screamed "stop," but no one came to his aid. During the assault, M.D. told the perpetrators that what they were doing "was gay," and one of them replied, "it's not gay unless you cum." M.D. Dep. at 96. M.D. alleges that during the second "gooching," Falodun came up behind him in the locker room and Falodun put his fingers up M.D.'s buttocks, anally penetrating him, stating "it wasn't gay unless you cum." Id. at 104. On another occasion, Falodun pushed M.D. up against the wall, put him over a trash can, and began simulating sex. M.D. testified that because he was "gooched" both over and under his clothes he began to wear two pairs of gym shorts daily in an attempt to protect himself.

The Bus Incident

On Friday night, January 22, 2010, M.D. traveled on a school bus to Terre Haute, Indiana, with the freshman, junior varsity, and varsity basketball teams for a game againstTerre Haute South. After a stop for dinner, seniors Laskowski, Hoge, and Kitzinger boarded the bus and proceeded to sit in the back. M.D. sat near the front of the bus, approximately a row or two behind where the coaches were sitting. From that location, M.D. could not hear what was going on in the back of the bus. At some point, however, M.D. alleges that he heard the three seniors calling his name, and, because he was afraid of what would happen if he did not see what they wanted, he went to the back of the bus. The three seniors then grabbed M.D., pulling him into one of the seats, and one of them sat on his face. The perpetrators tried to remove his shoes and socks and pull down his pants. They succeeded at pulling down one pair of shorts, but M.D. was wearing two pairs. Hoge then stuck his fingers into M.D.'s lower buttocks over the shorts. M.D. was then pulled to the ground at which point he alleges he was anally penetrated. M.D. contends that he tried to return to the front of the bus but that other freshmen players were blocking him with their legs. According to M.D., when he tried to call out for help, the three seniors covered his mouth while the other players simply watched. When M.D. was finally released by the seniors, he returned to the front of the bus. The three boys' basketball coaches, including Coach Blanding, were sitting in the front of the bus throughout the assault. Coach Blanding testified that he did not hear or see anything during the bus ride that alerted him to any occurrence of physical or sexual abuse or any other form of hazing.

Disclosure of the Incidents of Harassment and Sexual Assault

At some point in February 2010 - after the bus incident occurred but before School officials were informed of the incident - M.D. alleges that he was in Coach Blanding's office with some of the other players, including Falodun. In Coach Blanding's presence, Falodun asked M.D. if he (M.D.) needed "Lubriderm." Coach Blanding allegedly questioned M.D. about the comment and M.D. told Blanding that he had been sexually assaulted on the school bus on the way home from Terre Haute, and also that he had been harassed on numerous occasions in the boys' locker room.² M.D. contends that Coach Blanding asked why he did not say anything earlier, and M.D. replied that he thought Blanding already knew. Plaintiffs allege that Coach Blanding apparently took no action in response to M.D.'s report of harassment. Coach Blanding denies that this conversation ever took place, contending that he had no knowledge either of the incident on the bus or the prior harassment until February 16, 2010, the date on which School officials were first notified.

Junior varsity boys' basketball coach Chris Vandenberg also denies that he was made aware by M.D. or any other student of "hazing or bullying or fighting or inappropriate sexual contact." Vandenberg Dep. at 30. Coach Vandenburg testified that,prior to the Terre Haute bus trip, he had heard of an issue between Kitzinger and another player (not M.D.). According to Coach Vandenberg, he asked the student what happened and the student responded that he and Kitzinger "got into some kind of ... altercation I guess you would call it." Id. at 40. Coach Vandenberg testified that he asked the student further about the incident, but the student assured him that "it was no problem." Id. Based on the student's assurances, Coach Vandenberg did not report this conversation or take any further action.³

M.D. testified that he had "tried" to tell his physical education teacher, Lisa Ruxer, and the acting assistant principal for discipline, Kevin Gallman, about the harassment to which he had been subjected in the boys' locker room, but that ultimately he did not disclose to them what had occurred. According to M.D.'s testimony, "The entire team was aware, but none of the teachers knew about it." M.D. Dep. at 91. Eventually, the School learned of the harassment as well as the Terre Haute bus incident not from M.D., but from the mother of another student. On February 16, 2010, around 11:00 a.m., a nurse at the School received a telephone call in which a parent alleged that on January 22, 2010, M.D. was sexually assaulted on the school bus while returning from the Terre Haute South basketball game. School administrators were immediately informed of the report and began investigating the allegations. Superintendent Jeffrey Swensson testifiedthat he learned of the incident from CHS principal John Williams during a break in a meeting on February 16, 2010, that had begun at 9:00 a.m. However, it is unclear from the record the exact time of their conversation. Once notified, School officials informed their resource officer, Phil Hobson, of the report and also notified the Carmel Police Department who began an investigation by questioning students. The investigation was ongoing through March 2010. On the same day that M.D. first made his allegations public about the three seniors involved in the Terre Haute bus incident, those three students each received out-of-school suspensions for five days and were ultimately expelled.

M.D.'s Disciplinary and Academic Record

During his seven semesters as a student in the Carmel Clay School system, M.D. had accumulated forty-eight separate disciplinary referrals. From November 2009 through January 2010, the time period during which the harassment is alleged to have occurred, M.D. had a total of five disciplinary referrals, four for attendance related issues and one for a "failure to comply." Dillon Aff. Exh. A. Prior to November 2009, M.D. was disciplined for offenses such as disruptive behavior, harassment and threats, theft, fighting, and providing false information. Id. In his only full semester at CHS, which ended in December 2009, M.D.'s letter grades included a B+, a B, two Cs, a D, a D-, and two Fs, which resulted in a grade point...