Case Information
In the United States District Court for the District of Kansas _____________ Case No. 19-cv-02651-TC _____________ J.L.,
Plaintiff v.
R OYAL V ALLEY U.S.D. 337, ET AL ., Defendants _____________ MEMORANDUM AND ORDER
Plaintiff J.L. filed suit against her former school district and its su- perintendent, claiming that they violated state and federal law by failing to prevent another student, W.H., from sexually assaulting her. J.L. and Defendants filed cross-motions for summary judgment. Docs. 40 & 41. For the following reasons, J.L.’s Motion for Partial Summary Judg- ment, Doc. 41, is denied, and Defendant s’ Motion for Summary Judg- ment, Doc. 40, is granted in part and denied in part.
I
A Summary judgment is proper under the Federal Rules of Civil Pro- cedure when the moving party demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” when it is еssentia l to the claim’s resolution. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). And disputes over those material facts are “genuine” if the competing evidence would permit a reasonable jury to decide the issue in either party’s favor. Id . Disputes — even hotly contested ones over facts that are not essential to the claims are ir- relevant. Indeed, belaboring such disputes undermines the efficiency Rule 56 seeks to promote.
At the summary judgment stage, material facts “must be identified
by reference to affidavits, deposition transcripts, or specific exhibits
incorporated therein.”
Adler
, 144 F.3d at 671;
see also
D. Kan. R.
56.1(d). To determine whether a genuine issue of fact exists, the Court
views all evidence, and draws all reasonable inferences, in the light
most favorable to the nonmoving party.
See Allen v. Muskogee
, 119 F.3d
837, 839 – 40 (10th Cir. 1997). That said, the nonmoving party cannot
create a genuine factual dispute by making allegations that are purely
conclusory,
Adler
,
The filing of cross-motions for summary judgment does not alter
this standard. Each motion and its material facts —must “be treated
separately ,” meaning that “the denial of one does not require the grant
of another.”
Atl. Richfield Co. v. Farm Credit Bank Wichita
,
B J.L. contends that in November 2017, W.H. sexually assaulted her while they both attended high school at Royal Valley Unified School District 337. Doc. 43 at ¶¶ 1 3. At the time, she was a sophomore and he was a freshman. Doc. 40 at ¶ 44; Doc. 43 at 1. Her lawsuit is not against W.H, but against Royаl Valley and its superintendent, Aaric Davis. Nonetheless, W.H.’s actions, and Defendant s’ awareness of them, are critical to resolving the summary judgment motions.
1. It is undisputed that W.H. had a long history of behavioral issues and disciplinary action while attending elementary and middle schools in the district. J.L. highlights several incidents from W.H.’s fifth - through eighth-grade years that, she argues, had sexual overtones and show a pattern of sexually aggressive behavior. Doc. 43 at 9 11, ¶¶ 21 – 30 & 34.
J.L. identifies three incidents during W.H. ’s fifth-grade year. In one, W.H. told his school bus driver that two children on the bus were jumping up and down on each other and that it “looked like they were having sex.” Doc. 40 at ¶ 85; Doc. 43 at 3. The principal subsequently spokе with W.H. about why he chose those words. Doc. 40 at ¶ 85; Doc. 43 at 3. Also that year, W.H. called a female student a “whore” and told her to “die and go to hell.” Doc. 40 at ¶ 87; Doc. 43 at 3. W.H. received detention for this behavior. Doc. 40 at ¶ 87; Doc. 43 at 3. Finally, W.H. touched a female classmate’s chest on the school bus and received a one-day suspension as discipline. Doc. 40 at ¶ 88; Doc. 43 at 3.
J.L. identifies a single event from W.H.’s sixth -grade year. That event concerned a classroom altercation where W.H. threatened to stab himself with a pencil and made “several verbal outbursts” toward an assistant principal who attempted to intervene. Doc. 40 at ¶ 90; Doc. 43 at 3. As a result, W.H. was suspended for two days. Doc. 40 at ¶ 90; Doc. 43 at 3. “A note associated with the incident,” but not resulting in separate discipline, “states W.H. had asked three girls if they shave.” Doc. 40 at ¶ 90; Doc. 43 at 3. The timeline or relationship between these events is not clear. Doc. 40 at ¶ 90; Doc. 43 at 3.
J.L. identifies two incidents from W.H.’s seventh -grade year. In one, W.H. slapped a female student on the rear, claiming that “it was s lap butt Friday” and that the female student had slapped his rear as well. Doc. 40 at ¶ 94; Doc. 43 at 3. The principal instructed W.H. to stay away from the other student and suspended W.H.’s school email account. Doc. 40 at ¶ 94; Doc. 43 at 3. In the other incident, W.H. solicited рornographic photos from female students by way of the stu- dents’ private cell phones . Doc. 40 at ¶¶ 14 – 16; Doc. 43 at 3. This occured over a weekend and while none of the students were on school property. Doc. 40 at ¶¶ 14 – 16; Doc. 43 at 3. A concerned parent noti- fied the principal of those solicitations, and the school reported the call to law enforcement. Doc. 40 at ¶¶ 14 17; Doc. 43 at 3. [1] Local author- ities investigated the claim and charged W.H. in juvenile court. Doc. 40 at ¶ 25; Doc. 43 at 3. He eventually pled no contest to electronic solicitation, sexual exploitation of a child, and criminal threat. Doc. 40 at ¶¶ 18, 25 27; Doc. 43 at 3.
J.L. identifies one incident from W.H.’s eighth -grade year. A fe- male classmate alleged that W.H. forcibly attempted to kiss her while they were both in the band room. Doc. 40 at ¶ 30; Doc. 43 at ¶ 34; Doc. 44 at 7. W.H. claimed that the female student initiated the kiss with him. Doc. 40 at ¶ 31. The school’s investigation was inconclusive. Doc. 40 at ¶ 32. Still, the principal instructed staff to keep the two students separated and to store W.H.’s instrument in another location. Doc. 40 at ¶ 34. The principal also notified law enforcement of the situation. Doc. 40 at ¶ 36. Following law enforcement ’s investigation , the prosecutor filed battery charges against W.H. in juvenile court and W.H. ultimately pled no contest. Doc. 40 at ¶¶ 39 – 41. [2]
J.L. identifies no other sexually charged conduct attributable to W.H., but there were at least fourteen other behavioral and disciplinary events in W.H.’s file . These incidents range from fighting, pushing, and kicking male students to showing disrespect to teachers, lying about homework, and attempting self-harm. Doc. 40 at ¶¶ 81 – 101; Doc. 43 at 3. In other words, sexually aggressive conduct was not the whole, or even the majority, of W.H.’s notable pre -2017 behavior.
2. W.H. started high school in 2017. Until his November 1 encoun- ter with J.L. that fall, he had no noteworthy behavioral incidents at the high school.
a. What happened between W.H. and J.L. that day is hotly dis- puted. J.L. contends that W.H. forcibly raped her in a school bathroom during an after-school theater practice. Doc. 40 at ¶¶ 42 – 46; Doc. 43 ¶ 1; Doc. 42 at ¶ 1. W.H., on the other hand, claims that their sexual encounter was consensual. [3] Doc. 44 at 1. Royal Valley and Superinten- dent Davis point to the fact that the criminal charges filed against W.H. were dismissed with prejudice. Doc. 44 at 1.
The qustion is whether that dispute is material. The answer de-
pends on which motion is under consideration.
See Alfaro-Huitron v.
Cervantes Agribusiness
,
b. Following the assault, J.L. notified several people about the in- cident. She spoke first to a couple of her friends and then to John Cal- vert, a s heriff’s deputy stationed inside the building as thе s herriff’s designated school resource officer. [4] Doc. 40 at ¶¶ 45 48; Doc. 43 at 3. Calvert called a detective, who conducted an interview of J.L. Doc. 40 at ¶ 48; Doc. 43 at 3. She was then taken to the hospital for a medical examination. Doc. 40 at ¶ 49; Doc. 43 at 3.
Defendants were not immediately informed about the incident. Law enforcement did not notify Royal Valley of J.L.’s assault allega- tions. See Doc. 40 at ¶¶ 55 58. [5] J.L. did not make a formal report to the school. She did disclose during a lunch with teacher Samantha White that she had been raped. But she did not recall when this con- versation with White occurred, did not name the perpetrator, and did not share any other details. Dоc. 40 at ¶ 50; Doc. 43 at 3. It is not even clear from the summary judgment record that J.L. told White the rape occurred at school. White then reported that conversation to Calvert, but he told White that he was already aware and that the matter was already under investigation. Doc. 40 at ¶ 51.
The high school principal first learned that there had been an “in- cident” involving J.L . on November 13, 2017. On that date, during a phone call with the school counselor about an unrelated matter, J.L.’s father asked if the counselor “kn[e]w about the incident that happened at school.” Doc. 40 at ¶ 56. He then refused to further clarify and hung up. Id . The counselor reported the call to the principal, who in turn, inquired of Calvert whether he was aware of any incidents. Id. at ¶¶ 57 58. Calvert told the principal there had been a rape but refused to identify the perpetrator. Id. at ¶¶ 59 60. The next day, the principal contacted Superintendent Davis, who then called Calvert and learned that W.H. was the alleged attacker and had already been arrested. Id. at ¶¶ 60, 62.
c. The record indicates that between the incident (November 1) and W.H.’s arrest (November 13), W.H attended school or school ac- tivities on only two days (November 10 and 11). Doc. 40 at ¶ 70; Doc. 43 at 3. The summary judgment record does not indicate what, if any, interaction W.H. had with J.L. during that time. More importantly, the summary judgment record indicates that no Royal Valley employee knew that W.H. was the alleged perpetrator until November 14 — the day after his arrest.
Meanwhile, J.L. endured harassment from other classmates, in- cluding W.H.’s friends, about the rape. Specifically, she received text messages and saw social media posts that caused her to experience panic attacks and to begin eating lunch in White’s classroom more fre- quently than she did before the assault. Doc. 42 at ¶ 41; Doc. 43 at 12, ¶ 41. [6]
3. J.L. filed suit against both Royal Valley and Davis. With regard to Royal Valley, she contends that the school district violated her rights under Title IX, 20 U.S.C. § 1681. In particular, she claims that she wаs discriminated against on the basis of her sex, because Royal Valley knew of and was deliberately indifferent to —W.H.’s harassment of female students, thereby creating a hostile environment and effectively depriving J.L. of educational opportunities. J.L. also asserts 42 U.S.C. § 1983 claims against Royal Valley in its official capacity, claiming that it denied her rights to substantive due process and equal protection by failing to train employees to investigate sexual harassment and by adopting a custom of failing to respond to student-on-student harass- ment. She does not allege an individual-capacity Section 1983 claim against anyone, including Davis. Additionally, she allеges that both Royal Valley and Davis were negligent in their supervision of W.H. and in failing to adhere to their own anti-harassment policies. All parties have sought summary judgment on one or more claims. Doc. 40; Doc. 41.
II The parties’ cross-motions for summary judgment are granted in part and denied in part. In particular, Defendants ’ request for judgment as a matter of law on J.L.’s Title IX and constitutional claims are granted. For the same reasons, J.L. ’s opposing motion is denied. But Defendants’ motion for summary judgment on J.L.’s state-law negli- gence claim is denied as to Royal Valley, because there is a genuine dispute of material fact as to whether its conduct was reasonable in light of the circumstances and it enjoys no immunity from those claims. The same motion is granted as to Davis, however, who is im- mune under the Coverdell Act.
A J.L. ’s contends that Royal Valley discriminated against her in vio- lation of Title IX. That law provides, in relevant part, that “[n]o person in the United States shall, on the basis of sex, be excluded from partic- ipation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial as- sistance. ” 20 U.S.C. § 1681(a). That provision gives rise to an implied private right of action against a recipient of federal education funding for money damages when the discrimination arises from student-on- student sexual harassment. Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 639 44 (1999).
Davis
held that a covered entity, such as Royal Valley, may only be
held responsible for its own decisions and conduct. The entity may not
be held responsible for the acts of others, whether through application
of vicarious liability, negligence, or other agency principles.
Gebser v.
Lago Vista Indep. Sch. Dist.
,
The deliberate-indifference standard under Title IX is a high hurdle
and does not dictate any specific manner of dealing with peer harass-
ment. As the Court in
Davis
observed, to avoid liability the covered
entity “ must merely respond to known peer harassment in a manner
that is not clearly unreasonable.”
Davis
,
J.L. offers two reasons for why she believes that Royal Valley was deliberately indifferent. First, she alleges that Royal Valley failed to an- ticipate and prevent her assault. Second, she argues that Royal Valley failed to protect her from being harassed by other students after the assault. Doc. 43 at 17 18. Neither is sufficient to meet the burden that Davis and its progeny impose.
1. Royal Valley’s response was not clearly unreasonable. The most that can be said about Royal Valley’s response to W.H.’ s behavior is that it was debatable and may not, with the aid of hindsight, have been the best course of action. But, even so, it was not clearly unreasonable.
Much of J.L.’s argument focuses on the seven disciplinary inci- dents that she contends were sexual in nature during W.H.’s fifth - through eighth-grade years. [7] But each time, Royal Valley responded in a way that attempted to correct or punish W.H. ’s behavior, within the school system or, where necessary, by involving law enforcement.
The events from W.H.’s fifth and sixth grade are emblematic of Royal Valley’s response. When W.H. commented to a bus driver that two students were jumping on each other “like they were having sex,” called a female student a “whore,” asked inappropriate questions to three female students, and touched a female student ’ s chest, W.H was sent to the principal’s office , received detention, and was suspended. So tоo with the identified incidents in the seventh and eighth grades. After W.H. slapped a female student on her buttocks, Royal Valley directed him to have no further contact with the student he touched and suspended his school email account. After he solicited sexual photographs from female students, an event that occurred off campus and outside school hours, Royal Valley reported the occur- rence directly to law enforcement, who investigated and obtained a ju- venile conviction. And after he attempted to forcibly kiss a classmate in the band room, Royal Valley investigated, took preventative measures to keep W.H. separated from the alleged victim, and again reported the occurrence to law enforcement, who again investigated and prosecuted.
J.L. ’s argument , that Royal Valley could have or should have taken
additional measures, is insufficient to impose liability.
Contra
Doc. 43
at 15 16. The evidence shows that Royal Valley responded with in-
creasing levels of punishment and, where necessary, brought in law
enforcement to investigate and prosecute as appropriate. On these
facts, no reasonable jury could determine that Royal Valley ’s response
to W.H.’s behaviors was clearly unreasonable.
Davis
,
2. J.L. also fails to offer evidence suggesting that Royal Valley was deliberately indifferent to harassment from other students about the rape. Contra Doc. 43 at 18. She offers no admissible evidence that Royal Valley knew of any peer harassment and failed to act.
The disclosure that J.L. made to a teacher (Samantha White) about
the harassment is insufficient to establish deliberate indifference. J.L.
told White only generally that she was being harassed via social media
and messaging apps by friends of the perpetrator. But J.L. declined to
identify W.H. to White or otherwise describe the offensive conduct.
Thus, the summary judgment record does not indicate that White
knew the perpetrator or harassers were other Royal Valley students or
that she knew any harassment was occurring at or during school.
Atl.
Richfield Co. v. Farm Credit Bank Wichita
,
The same can be said about the potential interactions with W.H.
on the two days that he attended school prior to his arrest. Neither J.L.
nor the law enforcement personnel to whom she had reported the rape
notified Royal Valley of J.L.’s allegations or of law enforcement’s on-
going investigation. In fact, Royal Valley did not learn that W.H. was
the alleged perpetrator until November 14, the day after his arrest. In
short, Royal Valley had no opportunity to be deliberately indifferent to
any threat W.H. may have posed to J.L.
after
the raрe, because neither
the school nor the district knew of his involvement until after he
stopped attending. This is insufficient, as a matter of law, to constitute
deliberate indifference.
See Davis
,
B
J.L. has also alleged three counts under Section 1983. That statute
provides an avenue of recovery when a “person” acting on behalf of a
state, “causes” a deprivation of federal rights. 42 U.S.C. § 1983. In this
case, J.L. has alleged violations of her substantive due process and
equal protection rights under the Fourteenth Amendment. Substantive
due process protects citizens against arbitrary governmental depriva-
tions of their rights —including the “right to bodily integrity.”
Albright
v. Oliver
,
Unlike in the realm of tort, there is no vicarious liability or re-
spondeat superior for Section 1983 claims.
Monell v. Dep’t of Soc. Servs.
N.Y.
,
J.L. argues that Royal Valley bears liability for adopting a custom
or persistent practice of failing to respond to sexual harassment and
for failing to train employees to prevent sexual injury. Doc. 43 at 18 –
21. The focus of her claims is on Royal Valley, opting not to establish
that any employee (or group of employees) caused her to suffer a
deprivation of her constitutional rights. Doc. 38 at ¶ 4.a.(2)-(4) (limit-
ing her constitutional claims to the school district). But the Tenth Cir-
cuit has repeatedly held “that there must be a constitutional violation,
not just an unconstitutional policy, for a municipality to be held liable.”
Crowson v. Washington Cty.
,
J.L. has not established that Rоyal Valley (or anyone acting on its
behalf) violated her Fourteenth Amendment rights. Sexual assault
by
a
government official can constitute a substantive due process violation
,
see, e.g., Abetya v. Chama Valley Indep. Sch. Dist. No. 19
,
C J.L contends that Royal Valley and Davis were negligent in failing to follow nondiscretionary policies that prohibit sexual harassment against students, failing to require the investigation of sexual harass- ment, and failing to require prompt, remedial action to prevent the reoccurrence of sexual harassment. Doc. 38 at ¶ 4.a.(5). Defendants seek summary judgment, arguing that they owed no duty to J.L. and that, even if they did, they are immune from liability.
1.
Kansas substantive law controls. Doc. 38 at ¶ 1.d.;
see also
Doc.
40 at 32; Doc. 43 at 21. There are four elements to a negligence claim:
(i) defendant’s duty owed to plaintiff, (ii) defendant’s breach of that
duty, and (iii) plaintiff’s damages (iv) proximately caused by the breach.
Patterson v. Cowley Cty.
,
Under Kansas law, high schools do have a duty “ to properly su-
pervise students and to take reasonable steps to protect their safety ”
while on school premises.
Dunn v. Unified Sch. Dist. No. 67
,
The evidence is sufficient to сreate a question of fact as to whether
W.H. ’s attack on J.L. was reasonably foreseeable and whether the steps
that Defendants took were sufficient given W. H.’s prior conduct. W.H.
had a lengthy history of disruptive behavior in the years prior to the
rape, including multiple incidents that a jury could conclude gave rise
to a suspicion that he might engage in sexual violence or should be
monitored while on school property. Reasonable minds could reach
different conclusions about W.H.’s past behavior, including both the
seriousness of his past acts — in light of the surrounding circumstances
of age, social context, sexual maturity, etc. and what they might rеa-
sonably portend. Moreover, where Royal Valley took disciplinary
measures, conducted investigations, and involved law enforcement,
but still permitted W.H. to participate in after-school activities without
increased supervision, there is sufficient evidence for a reasonable jury
to find that Defendants breached their duty to J.L. and the breach of
that duty caused her injuries.
Cf. Nero
,
2. Defendants claim that the Coverdell Act, 20 U.S.C. § 7946, and two exceptions to the Kansas Tort Claims Act (KTCA), K.S.A. § 75- 6104, provide immunity from J.L.’s negligence claim.
a. Defendants assert that the discretionary function and policy en- forcement exceptions within the KTCA provide them immunity. The discretionary function exception, K.S.A. § 75-6104(e), provides that government entities will not be liable for claims “based upon the exer- cise or performance or the failure to exercise or perform a discretion- ary function or duty . . . whether or not the discretion is abused and regardless of the level of discretion involved.” The policy enforcement exception, K.S.A. § 75-6104(d), provides that government entities will not be liable for claims resulting from the “adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons’ health or safety unless a duty оf care, independent of such policy, is owed to the specific individual injured . . . .” Neither exception applies here.
The Kansas Supreme Court has previously refused to apply the
discretionary function exception in similar circumstances.
See Nero
, 861
P.2d at 781 – 83.
Nero
involved a peer-on-peer sexual assault in a com-
mon area of university housing. There, the court observed that under
the KTCA “liability is the rule and immunity is the exception” and that,
when analyzing the discretionary function exception, the “focus is on
the nature and quality of the discretion exercised.”
Id.
at 781 (internal
quotation marks omitted). Some amount of judgment is exercised in
every situation, so the question is not whether discretion was employed
but in what context.
See id.
The types of discretionary decisions that
Kansas law places “beyond judicial review” are only those that “in-
volve some element of policy formulation.”
Kan. State. Bank & Tr. Co.
v. Specialized Transp. Servs., Inc.
, 819 P.2d 587, 599 600 (Kan. 1991).
Thus, purely ministerial functions cannot give rise to immunity, and
neither can acts for which “there is a clearly defined mandatory duty
or guideline” imposed by case law or statute.
Nero
,
Defendants cannot succeed under
Nero
. While Royal Valley exer-
cised discretion in choosing to conduct after-school activities (such as
the theater practice at which J.L. was assaulted), once it did so the law
required Royal Valley to properly supervise and protect students in at-
tendance. It is not excused from this duty by any discretionary function
immunity.
Cf. Nero
,
As for the policy enforcement exception, it applies only when the duty of care arises from the adopted policy in question. The relevant statute prevents liability arising from the adoption, enforcement, or failure to adopt or enforce a written policy protecting a “person[’s ] health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured .” K.S.A. § 75 -6104(d) (emphasis added). Thus, i t does not apply whenever a defendant’ s duty of care exists independ- ent of the adopted policy. See Jarboe v. Bd. of Cty. Comm’rs , 938 P.2d 1293, 1295 Syl. ¶ 1 (Kan. 1997); Estate of Belden v. Brown Cty. , 261 P.3d 943, 965 66 (Kan. Ct. App. 2011). The source of Royal Valley’s duty of care to J.L. is Kansas common law and not an affirmative, additional policy that Royal Valley adopted. Thus, this exception cannot protect Defendants from negligence liability.
b.
Defendants also claim immunity under the Coverdell Act, 20
U.S.C. § 7941
et seq
. That statute immunizes teachers and administra-
tors for ordinary negligence in the scope of their employment, where
their acts or omissions were carried out in conformity with federal and
local law in an effort to maintain order. 20 U.S.C. § 7946;
Sanchez v.
Unified Sch. Dist. 469
,
While the immunity applies to administrators, J.L. argues that it does not extend to entities, such as Royal Valley. Doc. 43 at 23; see also Sanchez , 339 P.3d at 406 07. Defendants disagree, asserting that the KTCA’s “adoptive immunity” extends Coverdell immunity to Royal Valley. Doc. 47 at 11.
Adoptive immunity directs that “[a] governmental entity . . . shall not be liable for damages resulting from . . . any clаim which is . . . for injuries or property damage against an officer, employee or agent where the individual is immune from suit or da mages.” K.S.A. § 75 - 6104(i). Stated differently, adoptive immunity prevents governmental employers from being liable under respondeat superior for the conduct of immunized employees. Sanchez , 339 P.3d at 411 (“[T]he adoptive immunity exception to liability reflects an intent by the legislature to ensure that, in applying the doctrine of respondeat superior, a govern- mental entity has available to it the same defenses and limitations on liability that would be available to the private employer in comparable c ircumstances.”). As in Sanchez , Royal Valley is immune from liability for the acts and omissions of Davis, but it is not entitled to immunity with respect to its own acts and omissions. See id.
D J.L.’s cross -motion for summary judgment, which seeks judgment in her favor on the Title IX and Section 1983 claims, is denied both for the reasons of law stated above and because, for purposes of J.L. ’s summary judgment motion, there remains a genuine dispute of mate- rial fact about the nature of J.L.’s encounter with W.H.
III For the reasons set forth above, Plaintiff’s Partial Motion for Sum- mary Judgment, Doc. 41, is DENIED and Defendants’ Motion for Summary Judgment, Doc. 40, is GRANTED in part and DENIED in part. Because judgment has been entered in favor of Defendant Aaric Davis on all claims against him, he is hereby dismissed from this case.
It is so orderеd. Date: September 15, 2021 s/Toby Crouse Toby Crouse
United States District Judge
Notes
[1] J.L. argues that Royal Valley did not “know” at the time whether the solici- tation occurred on school grounds or not, but she does not controvert the fact that the solicitation did indeed occur off-campus. See Doc. 43 at 3.
[2] Without offering any contrary evidence as to Defendants’ account of the
band room incident, J.L. asserts (without explaining, analyzing, or establish-
ing) that Defendants ’ evidence— testimony from Royal Valley’s Fed. R. Civ.
P. 30(b)(6) representative about the school’s knowledge of and response to
the incident is inadmissible hearsay.
See
Doc. 43 at 3 4. That objection is
overruled.
See Bowers v. Netsmart Techs., Inc.
, No. 2:19-CV-2585, 2021 WL
2104985, at *4 n.26 (D. Kan. May 25, 2021);
see also Velez v. SCL Health-Front
Range, Inc.
, No. 14-cv-02179,
[3] J.L. objects to W.H.’s declaration because it was executed after discovery
had closed and submitted in а pleading filed three days late. Doc. 49 at 1.
That objection is overruled. The Court granted leave to file the identified
pleading out of time. Doc. 51 (finding the untimely filing occurred in good
faith, caused no delay in the proceedings, did not prejudice Plaintiff, and sat-
isfied the excusable-neglect standard). And there is no requirement that a lit-
igant obtain or even disclose affidavits or declarations during discovery —
only that they timely disclose their own potential witnesses and timely con-
duct any formal discovery of others’ that they elect to conduct.
Chen v. Dillard
Store Servs., Inc.
, No. 13-2358,
[4] Deputy Calvert was not a Royal Valley employee. He worked exclusively for the Jackson County Sheriff’s Department. Doc. 40 at ¶ 12; Doc. 43 at 3.
[5] J.L. attempts to controvert this fact by again claiming inadmissible hearsay. Doc. 43 at 4. For the same reasons stated in Note 2 supra , her objection is overruled.
[6] Defendants attempt to controvert this fact because J.L. did not report the post-rape harassment to an appropriate school administrator. See Doc. 44 at 8. But J.L.’s statement of fact s does not claim that she made a report, and while the cited testimony indicates she confided in White about social-media harassment, J.L. has not provided any evidence to suggest that White or Royal Valley was aware of any harassment occurring at the school.
[7] During this same time frame, W.H. had twice as many disciplinary incidents that are not alleged to have involved any sexual misconduct.
[8]
Crowson
identified a “limited exception” to this rule. 983 F.3d at at 1191
(permitting a claim to proceed against an entity based on a “systemic failure
of medical policies and procedu res”). J.L. does not rely on
Crowson
or the
limited exception it identified, arguing instead that Royal Valley staff failed to
respond appropriately and failed to train its employees. That fails as a matter
of law.
See Crowson
,
[9] There are two exceptions to this rule, but neither applies here.
Graham v.
Indep. Sch. Dist. No. I-89
,