United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
S. Cayer United States Magistrate Judge
MATTER is before the Court on “Defendants
Charlotte-Mecklenburg Board of Education and Anthony
Perkins' Motion to Dismiss (document # 27) filed January
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and this Motion is now
ripe for consideration.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendants' Motion to Dismiss be granted in
part and denied in part as discussed below.
PROCEDURAL AND FACTUAL BACKGROUND
an action seeking damages pursuant to Title IX of 20 U.S.C.
§§ 1681 and 42 U.S.C. § 1983 for violations of
Plaintiff's rights under the United States Constitution
as well as for state law claims.
the allegations of the First Amended Complaint as true, on
November 3, 2015, at around 6:30 a.m., Plaintiff and several
friends were in the Language Arts building at Myers Park High
School waiting for classes to begin when a male student,
Q.W., sent her text messages asking her to skip class with
him that day. Plaintiff declined. Q.W. then offered to walk
Plaintiff from the LA building to her first period class at
the gym across campus. Q.W. met Plaintiff at the LA building
and the two began walking to the gym. As they walked, Q.W.
continued to pressure Plaintiff to skip class with him.
Plaintiff repeatedly declined. As the two walked near a
parking area on campus, Defendant Leak was present and on
duty as the School Resource Officer for MPHS.
Leak saw Plaintiff and Q.W., he called out to Plaintiff
asking where she was going. Q.W. grabbed and squeezed
Plaintiff's arm and pulled her into the woods on CMS
property adjacent to MPHS's main campus. Frightened by
Q.W.'s aggression, Plaintiff did not respond to Leak.
While in the woods, Plaintiff again told Q.W. that she did
not want to skip class and get in trouble. She was fearful
for her safety and protested Q.W.'s actions, but he did
not relent and instead pulled her further into the woods.
Plaintiff began sending text messages to friends asking for
friend J.D. immediately sought out Leak and reported the
abduction and Plaintiff's text messages. Leak took no
action. Instead, Leak challenged Plaintiff's friend about
the veracity of her report. J.D. then sent a text message to
Plaintiff indicating that Leak was refusing to help. Leak
radioed for Defendant Perkins, an assistant principal, to
come down to confer in his office. When Perkins arrived, Leak
informed him that J.D. was “saying that her friend has
did not respond to the report. J.D. sent a text message to
Plaintiff and their friends stating, “Their [sic] not
believing her.” At the same time, Plaintiff was also
sending text messages to her mother pleading for help.
Plaintiff's mother asked her husband to contact MPHS in
order to locate their daughter. When Plaintiff's father
called MPHS, he spoke directly to Leak who was still talking
with J.D. Perkins had arrived in Leak's office at some
point during Leak's phone conversation with
the call with Plaintiff's father, Leak confirmed that he
had observed Q.W. and Plaintiff walking on campus earlier
that morning. Leak then stated that she was skipping class
voluntarily, although she had no disciplinary or truancy
history at MPHS. This discouraged Plaintiff's father from
taking any further action at that time to locate his
the time that Leak and Perkins were deciding whether to
respond at all to the report of Plaintiff's abduction,
Q.W. sexually assaulted Plaintiff. Around 7:50 a.m.,
Plaintiff informed her mother via text message of the sexual
assault stating, “I was attacked.” Her parents
again contacted MPHS to demand that officials locate their
and Perkins ultimately began to investigate and located Q.W.
and Plaintiff outside the woods. Plaintiff was distressed and
disheveled. Her hair was in disarray, she had mud on her
clothing, her glasses were broken, and there was semen on her
shirt. Despite her obvious distress, Leak directed Plaintiff
to sit next to Q.W. in the back seat of his patrol vehicle,
which she refused to do. Leak then put her in the front seat
next to him while Q.W. remained in the back seat with
Perkins, who now had J.D.'s cell phone in his possession.
Plaintiff was in shock and terrified of Q.W. who was seated
directly behind her. She was unable to provide a report to
Leak and Perkins at that time.
the drive back to campus, Plaintiff sent text messages to
J.D. in quick succession saying, “I was
attacked”; “I feel so gross”; “If I
have aids ima kill myself” [sic]. Unbeknownst to
Plaintiff, Perkins received those text messages on J.D.'s
cell phone and read them in real time. Once back on campus,
Perkins removed Q.W. from the patrol vehicle and took him to
Leak's office. Leak then spoke with Plaintiff and she
confirmed that Q.W. had sexually assaulted her. Back in
Leak's office, Q.W. claimed that he had consensual oral
sex with Plaintiff. Despite having knowledge that Plaintiff
had reported both an abduction and sexual assault, Perkins
failed to ask Q.W. for any pertinent details. Instead, he
accepted Q.W.'s version of events without conducting any
report, Perkins described the incident as “mutual
sexual contact between two students.” Despite having
actual notice that Plaintiff reported an abduction and sexual
assault by Q.W., neither Leak nor Perkins took a statement
from Plaintiff or otherwise investigated her complaint.
Neither Defendant offered to transport Plaintiff to a
hospital or assist her in making a police report.
omitted any reference to the attack in a statement he
prepared for CMS, saying “[Plaintiff] text[ed] that she
feels gross and she better not have an STD.” And in an
incident report he prepared on the morning of the assault,
Perkins classified the “offense type” as
“mutual sexual contact between two students, ”
notwithstanding his knowledge that Plaintiff reported being
“attacked” by Q.W. Perkins also reported in his
statement to CMS that Plaintiff's “clothes were not
dirty, and her hair was not out of place.”
the time at issue, Leak and other CMS officials including
Perkins had knowledge of sexual misconduct committed by male
students against female students in the woods adjacent to the
MPHS campus. One incident of sexual assault occurred on or
about October 22, 2014. CMS had received so many reports of
alleged sexual misconduct in the woods that Principal Bosco
convened a student assembly in the fall of 2015 to discuss
the situation. That assembly was held before the events at
the assembly, Principal Bosco told the students “some
people go into the woods and don't come back
happy.” He warned female students that MPHS could not
protect them if they went into the woods, and told male
students that “in these cases, you're guilty until
proven innocent because that's just the price we pay for
being men.” CMS promulgated a school policy in its
2015-2016 Student Handbook, which states: “Students may
not leave campus without permission from an administrator,
doing so will result in the student being considered
alleges that Defendant CMS failed to provide training or
education to its employees, agents, students and their
parents under Title IX to ensure a proper and lawful response
to student-against-student sexual harassment. Plaintiffs also
allege that CMS failed to provide training or education to
its employees, agents, students and their parents to protect
students from sexual harassment and violence. CMS had no
Title IX coordinator or other employees designated to address
complaints of sexual harassment.
November 1, 2018, Plaintiff initiated this action alleging
seven claims for relief: a claim against CMS under 20 U.S.C.
§§ 1681 for pre and post-report violations of Title
IX; a claim against CMS, Leak, and Perkins under 42 U.S.C.
§ 1983 for violations of Title IX and Plaintiff's
Constitutional rights under the Equal Protection clause of
the Fourteenth Amendment; a claim against CMS, the City, and
Putney under 42 U.S.C. § 1983 for failure to train; a
claim against Leak and Perkins for negligence; a claim
against Leak and Perkins for negligent infliction of
emotional distress; a claim ...