Rodgers v. Smart

521 F.Supp.3d 615

Caleb RODGERS, Plaintiff

v.Robert SMART, et al., Defendants

NO: 4:19CV191

United States District Court, N.D. Mississippi, Greenville Division.

Signed February 22, 2021

Brandon Flechas, the Stroud Law Firm PC, Southaven, MS, for Plaintiff.

Daniel Ellis Morris, Daniel E. Morris Law Firm, PLLC, Baton Rouge, LA, for Defendant Robert Smart.

Arnulfo Ursua Luciano, Daniel J. Griffith, Jacks Griffith Luciano, P.A., Cleveland, MS, Steven Lloyd Lacey, Steven L. Lacey Attorney at Law, PLLC, Madison, MS, Allison P. Fry, Sherman & Lacey, LLP, Ridgeland, MS, Brett R. Koehn, Koehn Law Firm, PLLC, Brandon, MS, for Defendant Cleveland School District.

ORDER

Michael P. Mills, UNITED STATES DISTRICT JUDGE This cause comes before the Court on Defendant Cleveland School District's ("CSD") motions to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) [27 & 52]. The Court has reviewed the briefs and submissions and is prepared to rule.

Factual Background

On November 22, 2019, Plaintiff Caleb Rodgers filed a complaint in the Circuit Court of Bolivar County, Mississippi, naming Robert Smart and CSD as defendants. Rodgers alleges that Smart, his former teacher, committed various acts of sexual abuse against him in 2015. For example, the complaint alleges that Smart sent Rodgers sexually explicit text messages, performed oral sex on Rodgers, forced Rodgers to perform oral sex on him, and paid Rodgers not to tell anyone about the abuse.

In his complaint, Rodgers first asserts federal claims under 42 U.S.C. § 1983, in which he contends that Smart violated his "clearly established right under the Fourteenth Amendment to be free from damage to and invasion of his bodily integrity in the form of physical sexual abuse." [2]. He further alleges that the failure of CSD administrators "to properly investigate, train, and/or supervise, and the retention of Smart in his position as teacher, exhibited deliberate indifference to Rodgers's right to be free from violation of his bodily integrity form [sic] physical, sexual abuse." [2].

In addition to his federal claims, Rodgers asserts state law claims in which he contends that Smart committed two intentional torts against him, namely assault and battery. He also asserts state law tort claims against CSD under the Mississippi Tort Claims Act ("MTCA"), alleging that:

32. Cleveland School District, by and through its administration, allowed an unreasonably dangerous condition to exist on its premises in allowing Smart, an employee, to cover the windows to his classroom, thereby allowing him to provide himself cover to sexually abuse students on school property.

33. Cleveland School District knew, or with the exercise of reasonable care, should have known, of Smart's proclivities for sexual abuse toward minors, and Cleveland School District failed to take any reasonable steps to prevent Smart from committing sexual abuse against minors on Cleveland School District Property.

34. Cleveland School District knew, or with the exercise of reasonable care, should have known, of Smart's proclivities toward minors and unfitness for his position, and Cleveland School District was negligent in its hiring, retention, training, and supervision of Defendant Smart. [2].

Procedural History

A month after the complaint was filed, CSD removed this case to federal court, asserting that Rodgers' § 1983 claims gave rise to federal question jurisdiction. See 28 U.S.C. § 1331. CSD then filed the first of the two pending motions to dismiss for failure to state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). In response, Rodgers concedes that CSD's motion to dismiss should be granted as to his § 1983 claims, but he argues that his MTCA claims against CSD should survive.

Before this Court could rule on CSD's first motion to dismiss, it filed a second such motion, in which it asserts an additional argument that Rodgers's MTCA claims are time-barred. This court will presently address each of the pending motions to dismiss filed by CSD.

Discussion

I. 28 U.S.C. § 1983 Claim

In addressing the dismissal issues in this case, this court initially notes that CSD, but not Smart, has filed motions to dismiss. This means, of course, that the federal and state claims asserted by plaintiff against Smart are not impacted by this court's order today. Once again, Rodgers concedes that his federal § 1983 claims against CSD should be dismissed, which leaves his state law MTCA claims as the sole ones asserted against this defendant. This has an important procedural effect in this case. Namely, the fact that the state law claims against CSD are asserted under the MTCA means that a bench, not jury, trial will be held as to these claims. See Miss. Code Ann. § 11-46-13(1) ("The judge of the appropriate court shall hear and determine, without a jury, any suit filed under the provisions of this chapter."). See also Kirk v. Crump , 886 So.2d 741 (Miss. Ct. App. 2004) (holding that claims of criminal assault outside the scope of the MTCA should be decided by a jury, while claims asserted under the MTCA should be decided in a bench trial.) See also Gibson v. Estes , 2007 WL 1459307, at *1 (N.D. Miss. 2007) ; Taylor-Travis v. Jackson State Univ. , 2017 WL 6604567, at *10 (S.D. Miss. 2017) (applying the bench trial requirement in federal court).

It is thus clear that this court will be serving as the trier of fact of the MTCA claims against CSD, and it is with awareness of this future role that it turns to the motion to dismiss. In its motion, CSD notes that Mississippi Code Annotated § 11-46-5(2) provides that "[f]or the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations." Miss. Code Ann. § 11-46-5(2).

CSD argues based on this provision that, to the extent that Rodgers attempts to hold it vicariously liable for the sexual assaults committed by Smart, then such liability is precluded by § 11-46-5(2). This court agrees, and it will take care, in performing its role as trier of fact, not to assign vicarious liability against CSD merely because one of its employees (allegedly) committed a sexual assault against plaintiff. In the court's view, such an assault constitutes a "criminal offense" outside the scope of Smart's employment, and it thus seems clear that CSD may not be held vicariously liable for it under the MTCA. While this court thus agrees that CSD is entitled to dismissal of the state law claims against it to this limited extent, it believes that Mississippi law is considerably less clear regarding the bases for dismissal which CSD asserts regarding its own alleged acts and omissions in this case.

CSD argues that it is entitled to dismissal of the negligence claims against it based on 1) the MTCA's discretionary functions exception set forth in § 11-46-9(1)(d) and 2) the one-year statute of limitations set forth in § 11-46-11. This court will consider these arguments in turn. As to CSD's first argument, this court initially observes that the MTCA's discretionary function exception has been interpreted and applied by the Mississippi Supreme Court in dramatically different manners in various decisions. This has, in the court's view, left the law in this area one of the murkiest in all of Mississippi's civil jurisprudence, which makes CSD's efforts to seek dismissal on this basis problematic. This court will briefly discuss what is merely a sampling of the conflicting Mississippi Supreme Court case law which lead it to this conclusion.

In the 1999 decision of L.W. v. McComb Separate Mun. Sch. Dist. , 754 So.2d 1136, 1143 (Miss. 1999), the Supreme Court read the discretionary functions exception in § 11-46-9(1)(d) in conjunction with a separate MTCA exception set forth in § 11-46-9(1)(b) and interpreted the latter as imposing a duty of "reasonable care" in order for the discretionary function exception to apply. This discretionary function exception set forth in § 11-46-9(1)(d) provides that:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

Section 11-46-9(1)(b), in turn, provides that:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid.

These appear to be entirely separate exceptions to liability which are written in the disjunctive. As the Supreme Court itself later recognized, this raises questions regarding L.W. 's approach of using § 11-46-9(1)(b)'s provisions as a generalized duty on the part of state and local defendants to exercise "reasonable care" in various contexts, including as it relates to the application of the discretionary functions exception in § 11-46-9(1)(d).

In the 2004 decision of Collins v. Tallahatchie County , the Supreme Court wrote to correct "an apparent misunderstanding" and "erroneous proposition that one must use ordinary care in performing a discretionary function to retain immunity." The Supreme Court wrote in Collins , that, contrary to L.W. and its progeny, § 11-46-9(1)(b) and § 11-46-9(1)(d) are written in the disjunctive and, accordingly, if a defendant establishes that the...