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Doe v. School District No.1

United States District Court, D. Colorado

July 30, 2019

JANE DOE, Plaintiff,
v.
SCHOOL DISTRICT NO. 1, DENVER, COLORADO a/k/a Denver Public Schools “DPS”; TOM BOASBERG, individually and in his official capacity as superintendent of DPS; ANDY MENDELSBERG, individually and in his official capacity as a principal with DPS; JANN PETERSON, individually and in her official capacity as an assistant principal with DPS; JEANETTE SCULLY, individually and in her official capacity as a dean with DPS; ERIC SINCLAIR, individually and in his official capacity as a dean with DPS; and ANITA CURTISS, individually and in her official capacity as a school psychologist with DPS; Defendants.

          ORDER

          RAYMOND P. MOORE United States District Judge.

         This matter is before the Court on two motions to dismiss: one by Defendant Mendelsberg (ECF No. 40) and another by the remaining Defendants (ECF No. 36). The motions have been fully briefed. (ECF Nos. 38, 39, 41, 42.) The Court has reviewed the pleadings, case file, and applicable law. For the reasons stated below, the Court grants both motions.

         I. LEGAL STANDARDS

         In evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007); see also Id. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Conclusory allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009), and courts “are not bound to accept as true a legal conclusion couched as a factual allegation, ” Twombly, 550 U.S. at 555 (quotation omitted). To determine whether a claim is plausible, a court considers “the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard doesn't require a plaintiff to set forth a prima facie case for each element.” George v. Urban Settlement Servs., 833 F.3d 1242, 1247 (10th Cir. 2016) (quotation omitted). However, if the allegations “are so general that they encompass a wide swath of conduct, much of it innocent, ” the plaintiff has not “nudged [her] claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quotation omitted).

         Qualified immunity shields individual defendants named in § 1983 actions unless their conduct was unreasonable in light of clearly established law. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). “[W]hen a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” Id. (quotation omitted). “Asserting a qualified immunity defense via a Rule 12(b)(6) motion . . . subjects the defendant to a more challenging standard of review than would apply on summary judgment.” Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004).

         II. BACKGROUND

         The factual allegations in the first amended complaint (ECF No. 32) are taken as true for present purposes. Plaintiff attended East High School (“EHS”), which is part of Defendant School District No. 1 (“DPS”). (Id. at ¶ 8.) Plaintiff was fourteen in March 2016, when Student 1, a classmate, sexually assaulted her in his home on a Saturday evening. (Id. at ¶ 9.) The assault produced bruises on Plaintiff, which her older sister photographed. (Id. at ¶¶ 10, 12.) The following Monday, Plaintiff reported the assault to Defendant Sculley, a dean at EHS. (Id. at ¶ 13.) Defendant Sculley referred Plaintiff to Defendant Curtiss, a school psychologist. Plaintiff discussed the incident with Defendant Curtiss and presented her bruises. (Id. at ¶ 14.) Defendant Sculley asked Plaintiff if she wanted to press charges, but Plaintiff did not understand what that meant. (Id. at ¶ 15.)

         Later that day, Defendants Sculley and Curtiss met with Plaintiff's mother and Plaintiff's older sister, who showed them the photos of Plaintiff's bruises. (Id. at ¶ 16.) Defendants Sculley and Curtiss then met with Plaintiff's mother and father. (Id. at ¶ 17.) When asked whether they wanted to press charges, Plaintiff's parents responded that they did not want to ruin the boy's life but that they did want the assault documented in Plaintiff's and Student 1's files. (Id.) Although Defendants Sculley and Curtiss were mandatory reporters under Colorado law, see Colo. Rev. Stat. § 19-3-304(2)(l), they did not report the assault.

         That same week, Plaintiff met with Defendant Sculley again to report that she was facing “backlash” from peers who had heard about the assault. (Id. at ¶ 27.) Plaintiff also met with Defendant Curtiss several times and stated that she regretted informing EHS about the assault because it had led to “peer conflicts” and she was “struggling with the fallout of her friendships.” (Id. at ¶¶ 29, 30, 36.) Plaintiff was warned[1] to stay away from Student 1, and there is no allegation that he refused to stay away from her after she reported the assault. (Id. at ¶ 37.) Nor is there an allegation that she and Student 1 were in any classes together or that other circumstances within the school's control compelled her to have to interact with him on campus.

         In the weeks that followed, Defendant Curtiss learned that Plaintiff “had started to cut herself, which is something she had never done before.” (Id. at ¶ 40.) In addition, Plaintiff told Defendant Curtiss that she was having ongoing conflict with her peers, that she was continuing to have problems with Student 1, and that his friends were harassing her. (Id. at ¶¶ 41, 43.) One of them told her, “We took a vote and we all agreed that you'll lose your virginity first.” (Id. at ¶ 43.) Defendant Curtiss had Plaintiff fill out a safety plan form and reminded her not to talk to Student 1. (Id. at ¶¶ 40, 46.) Defendant Curtiss also asked Defendant Sculley to talk with Student 1 and remind him that he and his friends were not to harass Plaintiff. (Id. at 45.)

         According to the complaint, the following fall “there were additional reports that [Plaintiff] was being bullied” and having “ongoing conflicts with other students.” (Id. at ¶¶ 51, 52.) In December 2016, Plaintiff told Defendant Curtiss that she was considering switching schools. (Id. at ¶ 54.)

         In January 2017, Plaintiff and her older sister made an anonymous Safe2Tell report[2]accusing Student 3, a close friend of Student 1, of “excessive bullying and blackmailing.” (Id. at ¶ 55.) Although the report was sent to Defendant Mendelsberg, the principal of EHS, it was handled by Defendant Sinclair, a dean, and Defendant Peterson, an assistant principal. (Id. at ¶¶ 56, 57.) The day after the report was made, Defendants Sinclair and Peterson met with Plaintiff, who admitted that she made the report. (Id. at ¶ 57.) She complained about bullying and harassment by Student 2, stating that he “would constantly stare at [her], smirk at her, associate with a group of other students who would make drawings of [Plaintiff] telling her to kill herself, call her names, start rumors about her and make rape jokes about [Student 1] to [her].” (Id.) Plaintiff informed Defendants Sinclair and Peterson about the March 2016 assault by Student 1, but neither of them reported it to the police. (Id. at ¶¶ 57, 58.) Plaintiff also reported that Student 3 had “shoved her down while at lunch [off campus] and then called her a ‘dirty slut.'” (Id. at ¶ 59.) In addition to Students 1, 2, and 3, Plaintiff identified three other male students who “pulled on her backpack all the time and would draw pictures of her killing herself.” (Id.)

         Defendants Sinclair and Peterson met with Plaintiff's parents that day. (Id. at ¶ 60.) According to the complaint, “During the meeting, [Defendant] Mendelsberg came into the meeting to ask if [Plaintiff] was okay but then abruptly left.” (Id.) After Plaintiff was sent back to class, she returned to Defendant Sinclair's office because she was afraid of what the boys she identified would do to her if they found out she made the Safe2Tell report. (Id. at ¶ 61.)

         The same month, a suicide risk review (“SRR”) on Plaintiff was completed.[3] (Id. at ¶ 64.) DPS contacted Plaintiff's parents regarding the SRR but not her therapist. (Id.) The SRR stated that the March 2016 assault had been reported to the police, even though it had not been. (Id.) The SRR also stated that Plaintiff had “lost interest in self-preservation”; “wasn't sleeping well and thought about overdosing on sleeping pills”; “wrote a goodbye letter to her older sister”; and “was having nightmares thinking about [Student 1] in her room.” (Id. at ¶ 65.) The SRR further opined that Plaintiff might be “suffering from an emotional disability.” (Id. at ¶ 66.)

         Plaintiff met with Defendant Sinclair several times in the weeks that followed. (Id. at ¶¶ 62, 63, 71.) A school psychologist was present at one of those meetings. (Id. at ¶ 63.) Plaintiff “wrote down the names of all of the other students who were harassing her” and provided “copies of numerous pictures and social media exchanges.” (Id.) Plaintiff made multiple reports of “bullying and harassment, ” and her parents met with Defendant Sinclair to express their frustration “that nothing was being done to address [it].” (Id. at ¶ 71.)

         In April 2017, Plaintiff received social media postings that upset her, including a Snapchat message that said, “Consent is a myth.” (Id. at ¶¶ 73, 74.) After yet another meeting with another dean, a counselor, and Plaintiff's older sister, Plaintiff's mother decided that Plaintiff “would not be returning to EHS.” (Id. at ¶ 79.) Plaintiff's parents met with Defendant Mendelsberg the following month to discuss her withdrawal. (Id. at ¶ 86.) Six weeks remained of the school year, and Defendant Mendelsberg refused to “freeze” Plaintiff's high grades where they were. (Id. at ¶ 90.) Instead, Plaintiff's parents and Defendant Mendelsberg decided that for the remaining six weeks of the school year Plaintiff could stay home during normal school hours but would have to come in before or after school at least three days per week. (Id. at ¶¶ 88, 89.) She still “was required to take her final exams during the designated final exam times and in the same rooms as her harassers were in, thereby further revictimizing her.” (Id. at ¶ 89.) Plaintiff complied with this arrangement and ended the school year with a 4.0 grade-point average. (Id. at ¶ 90.)

         In August 2017, Defendant Boasberg, the superintendent of DPS, received an email from “the student of an EHS parent” suggesting Plaintiff's mother withdrew Plaintiff from EHS because of Defendant Mendelsberg's handling of Plaintiff's situation. (Id. at ¶ 93.) In the following months, Plaintiff's parents communicated with an investigator and attorney with DPS to discuss Plaintiff's situation. (Id. at ¶¶ 95-99.)

         In November 2017, Plaintiff filed a police report about the March 2016 assault, and “[i]n 2018, [Student 1] pleaded guilty to a felony sexual assault with force because of his ...


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