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Doe v. Herman

United States District Court, D. South Carolina, Charleston Division

June 10, 2016

JANE DOE, by her Natural Guardian and Legal Representative, FATHER DOE, Plaintiff,



         This matter is before the court on defendants Cynthia McBride (“McBride”) and Nate Spitulski’s (“Spitulski”)(collectively the “moving defendants”) motion to dismiss plaintiff Jane Doe’s (“plaintiff”) claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the court grants in part and denies in part the moving defendants’ motion to dismiss.

         I. BACKGROUND[1]

         Plaintiff is a minor under the age of eighteen and was, at all times relevant to this action, a student at Goose Creek High School (“GCHS”). Am. Compl. ¶¶ 1, 51. At the beginning of the 2014-15 school year, plaintiff became aware of defendant Paul Herman (“Herman”), a school official employed by the Berkeley County School District (“BCSD”)[2] as an Assistant Principal at GCHS. Id. ¶¶ 3, 49, 51. During the school year, Herman engaged plaintiff in intimate conversations on school grounds, in plain view of other students and GCHS employees. Id. ¶ 51. On December 18, 2014, Herman told plaintiff that he was sexually attracted to her, but warned her: “If this were to ever get out no one would believe you . . . .” Id. ¶ 55. Between December 2014 and February 2015, Herman engaged in a variety of public behaviors with plaintiff which plainly demonstrated his prurient sexual interest in her, including: (i) directing plaintiff into his office, where he would kiss and touch her during and after school; (ii) replacing other GCHS personnel in supervising school and extra-curricular activities involving plaintiff, without offering any rational basis for such decisions; (iii) engaging plaintiff in intimate conversations and making sexual comments to her on a daily basis, in public areas and in plain view of other school officials; (iv) excusing plaintiff from her classes for no disciplinary or educational purpose; (v) habitually waiting outside of plaintiff’s classrooms to speak with her when she exited class; and (vi) regularly watching plaintiff on the school’s surveillance cameras to track her movement and location. Id. ¶ 53. Privately, Herman also used his age and position to advance his prurient sexual interest in plaintiff by telling her he could change her grades without regard to her academic performance and threatening to suspend male students who spoke to her. Id. ¶ 57.

         From January to February 2014, Herman communicated with plaintiff by telephone and sent her text messages discussing sexual and other inappropriate subject matter. Id. ¶ 59. On Friday 20, 2015, Herman isolated plaintiff in his office and subjected her to sexual battery. Id. ¶ 58. The next day, plaintiff’s father (“Father Doe”) learned of the inappropriate telephone communications Herman was sending plaintiff, and on Monday, February 23, 2015, Father Doe reported Herman to the Berkeley County Sheriff’s Office. Id. ¶ 59.

         The moving defendants were also employed as Assistant Principals at GCHS during the 2014-15 school year. Id. ¶¶ 4, 5. Spitulski’s responsibilities included supervision, management, and control over the GCHS Teachers’ Assistants (“TA”) program, requiring him to supervise and investigate misconduct among students and employees in the TA program. Id. ¶ 11. McBride’s responsibilities included acting as the GCHS Title IX administrator, requiring her to supervise, identify, and administer civil rights concerns among students and employees at GCHS. Id. ¶ 10. The moving defendants each had a general responsibility to observe GCHS student-employee interactions for inappropriate conduct. Id. ¶ 13. Specifically, BCSD policy required that:

Any employee who believes that he/she has witnessed inappropriate conduct of a sexual nature toward an employee or a student must immediately report such a situation to his/her immediate supervisor or principal . . . . All administrators/supervisors/contact persons will initiate an investigation of any incident or alleged sexual harassment or inappropriate conduct of a sexual nature reported to them or observed by them in consultation with the district’s Title IX Coordinator.

Id. ¶ 9 (citing BCSD Policy AR GBAA-R Employee Sexual Discrimination and Harassment- Issued 3/8/05; Revised 7/10/07).

         Plaintiff alleges that the moving defendants became aware of Herman’s sexual interest in plaintiff through first hand observations and their interactions with Herman. Id. ¶¶ 19, 22. Plaintiff contends that the moving defendants observed Herman and plaintiff together for no educational reason throughout the school and in Herman’s office on a daily basis and witnessed Herman frequently engage plaintiff in behavior deemed inappropriate under BCSD policy. Id. ¶¶ 22, 24. Despite these alleged observations, the moving defendants did not report Herman’s misconduct or take any other action to prevent Herman from harming plaintiff. Id. 19, 25-27.

         Plaintiff further alleges that the moving defendants went beyond simply failing to intervene and actually enabled Herman’s misconduct. With regard to Spitulski, plaintiff alleges that Spitulski learned that Herman was concealing his misconduct toward plaintiff under the guise of the TA program and that Spitulski aided this concealment by telling BCSD officials and GCHS employees that plaintiff was Herman’s TA, despite knowing that she was not. Id. ¶¶ 31-37. Plaintiff also alleges that Spitulski participated in certain of the conversations between herself and Herman, wherein Herman informed plaintiff that he could change her grades without regard to her academic performance. Id. ¶ 38. As for McBride, plaintiff alleges that McBride confronted Herman about the inappropriate amount of time he was spending with plaintiff in plain view of GCHS students and employees, and “directed [] Herman to conceal and hide his contact with plaintiff in private isolated settings at GCHS.” Id. 46, 47.

         On the basis of these allegations, plaintiff filed this action on November 30, 2015. The moving defendants filed the instant motion to dismiss on February 2, 2016. Plaintiff filed a response, along with an amended complaint, on February 16, 2016. The amended complaint brings causes of action under § 1983 against the moving defendants under a supervisory liability theory and a state-created danger theory. The moving defendants filed their reply on February 26, 2016. The court held a hearing on April 12, 2016. The motion is ripe for the court’s review.

         II. STANDARDS

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b)(6) motion to dismiss, the court must accept the plaintiff’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss, the court’s task is limited to determining whether the complaint states a “plausible claim for relief.” Id. at 679. Although Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief, ” “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “Facts pled that are ‘merely consistent with’ liability are not sufficient.” A Soc’y Without a Name v. Va., 655 F.3d 342, 346 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

         III. ...

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