United States District Court, D. Colorado
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' motion to
dismiss. (ECF No. 26.) The motion has been fully briefed.
(ECF Nos. 42, 47.) The Court has reviewed the pleadings, case
file, and applicable law and now grants the motion for the
reasons stated below.
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).
present purposes, the Court accepts the allegations in the
complaint as true. When Plaintiff was seventeen, she was a
student at DCIS Montbello, a DPS high school, and attended a
school trip to France. More than a week before the trip,
Plaintiff learned that she had been assigned to stay with a
host family that included a son, and she asked the teacher
supervising the trip to change her assignment to a host
family with a daughter. The teacher refused to do so. The
teacher did not inform the principal or Plaintiff's
parents about Plaintiff's placement. Plaintiff alleges
that the host son sexually harassed her repeatedly during her
stay with the host family and, on her last night there,
sexually assaulted her.
next day, Plaintiff reported the assault to the teacher
supervising the trip. By that time, however, the students had
left their host families and traveled to another city in
France. The teacher did not immediately report the assault to
anyone. Nor did she arrange or provide any services, such as
medical treatment or counseling, to help Plaintiff cope with
the trauma she was experiencing as a result of the assault.
The trip ended three days later, and the students returned to
Denver. The following Monday, another two days later, the
supervising teacher reported the assault to the principal,
Defendant Murgel. That day, Defendant Murgel held a meeting
with Plaintiff, her mother, the teacher who supervised the
trip, a dean, and a social worker. At the meeting, Defendant
Murgel opined that it would be difficult to take action
against the host son, presumably because he was not a student
of DPS, or even a U.S. citizen, and lived in another country.
At the end of the meeting, the social worker assisted
Plaintiff with filing a police report.
her handling of the situation, the teacher who supervised the
trip was either terminated or forced to resign. Plaintiff
suffered from severe emotional distress, trauma, and
post-traumatic stress disorder as a result of the incident.
She was subsequently placed on a “504 plan” and
assigned a social worker by DPS. Plaintiff contends that the
support from DPS was “too little, too late”
because “[t]he damage had already been done.”
(ECF No. 1, Compl. at ¶ 55).
complaint asserts seven claims against DPS and three
individual Defendants individually and in their official
capacities, but only one claim remains in the case-that DPS
violated Title IX of the Education Amendments of 1972 by its
deliberate indifference to sexual harassment. Plaintiff
contends that DPS “placed [her] in a housing situation
in which it was reasonably foreseeable that [she] would be at
risk of violence, sexual assault, and/or rape”
(Id. at ¶ 1), that her placement with the host
family violated DPS policies requiring female students to be
placed only with host families that had daughters (and male
students to be placed only with host families that had sons)
and all students on overnight stays to “only be with
students of the same sex based on arrangements made by the
program supervisor” (Id. at ¶¶ 14,
15), that her placement violated a state law requiring school
officials to use reasonable care to protect students from
reasonably foreseeable acts of violence, and that “any
reasonable person would have recognized that placing a
seventeen-year-old girl in a housing situation with a male
student in the house for a week might lead to an act of
violence, including in particular sexual assault”
(Id. at ¶¶ 19, 20).
state a claim of school district liability under Title IX, a
plaintiff must allege that the district (1) had actual
knowledge of and (2) was deliberately indifferent to (3)
harassment that was so severe, pervasive, and objectively
offensive that it (4) deprived the victim of access to the
educational benefits or opportunities provided by the school.
Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1246
(10th Cir. 1999). The Court finds Plaintiff's complaint
fails to satisfy the first two elements.
respect to the first element, Plaintiff does not allege that
DPS had any specific reason to believe that the host son
posed a substantial risk to her safety other than because he
was a male. Compare Escue v. N. Okla. Coll., 450
F.3d 1146, 1154 (10th Cir. 2006) (“Generally, the
district courts that have examined the issue [of actual
knowledge when prior acts of harassment are alleged] have
required that the school have actual knowledge of a
substantial risk of abuse to students based on prior
complaints by other students.” (quotation omitted)).
Plaintiff cites no authority to support her argument that DPS
had actual knowledge that harassment or an assault would
occur simply because she was assigned to a host family with a
son. Unsupported assumptions are insufficient to establish
actual knowledge. The fact that some males commit sexual
assault against females is insufficient to establish that
every male poses a substantial risk to every female.
According to the complaint, by the time anyone at DPS knew of
a substantial risk to Plaintiff, she was no longer staying
with the host family and the students had continued their
trip by traveling to another city in France. Because there is
no basis for concluding DPS had actual knowledge that
Plaintiff faced a substantial risk of harassment or assault
beforehand and no allegation that further harassment occurred
once DPS was made aware of what had happened, Plaintiff
necessarily fails to state a Title IX claim.