United States District Court, D. South Carolina, Charleston Division
JANE DOE, by her Natural Guardian and Legal Representative, FATHER DOE, Plaintiff,
PAUL HERMAN, Individually; CYNTHIA MCBRIDE, Individually; NATE SPITULSKI, Individually; and BERKELEY COUNTY SCHOOL DISTRICT, Defendants.
C. NORTON UNITED STATES DISTRICT JUDGE.
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.
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”) 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.
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.
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
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
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,
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.
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.
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).