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Doe v. Putney

United States District Court, W.D. North Carolina, Charlotte Division

June 5, 2019

JANE DOE, Plaintiff,
v.
KERR PUTNEY, CITY OF CHARLOTTE, ANTHONY PERKINS, BRADLEY LEAK AND CHARLOTTE MECKLENBURG BOARD OF EDUCATION, Defendants.

          MEMORANDUM AND RECOMMENDATION

          David S. Cayer United States Magistrate Judge

         THIS MATTER is before the Court on “Defendants Charlotte-Mecklenburg Board of Education and Anthony Perkins' Motion to Dismiss (document # 27) filed January 15, 2019.

         This 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.

         Having 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.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         This is 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.

         Accepting 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.

         When 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 help.

         Plaintiff's 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 been kidnapped.”

         Perkins 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 Plaintiff's father.

         During 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 daughter.

         During 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 daughter.

         Leak 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.

         During 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 investigation.

         In his 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.

         Perkins 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.”

         During 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 issue here.

         During 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 truant.”

         Plaintiff 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.

         On 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 ...


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