Opinion
No. CIV 00-1641 M/WWD
July 5, 2001
ORDER
This case comes up on Defendants Motion to Dismiss for failure to state a claim on which relief can be granted. Plaintiffs allege sexual harassment of a student by her teacher and file their case pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, Section 1983 of the Civil Rights Acts, 42 U.S.C. § 1983, and a constitutional right to substantive due process. Jurisdiction and venue are proper and not contested. Defendants are the teacher, now deceased, but formally a state employee, and his employer, the local public school system. Claiming qualified immunity, Defendants file a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). I conclude the motion goes well beyond what can be considered under Rule 12(b) and is entirely without merit. I also find no reason to convert the motion to one for summary judgment pursuant to Fed.R.Civ.P. 56 and good reason not to revert to Rule 56.
First, Defendants motion does not inadvertently slip from Rule 12 to Rule 56. Defendants themselves attach pages of Plaintiff Espinosas deposition to the motion to dismiss, and defense counsel should have known better.
Motions to dismiss pursuant to Rule 12(b)(6) are limited solely to issues of law. Wright Miller, Federal Practice and Procedure: Civil 2d sec. 1356 (1990) at 303. [T] he courts inquiry essentially is limited to the content of the complaint. Id. at 298. The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. Id. at 294.
Secondly, Defendants neglect to identify uncontested facts, rely solely on facts very much disputed, and do not view any fact as stated in the Amended Complaint. Defendants argue only that Flores actions — as Defendants describe them — are not constitutionally offensive. This makes both a Rule12(b) motion and a Rule 56 motion pointless because regardless of which of the two is invoked at this point, all facts and inferences be must considered in the light most favorable to the Plaintiffs. Scheuer v. Rhodes, 416 U.S. 232 (1974); Housing Auth. of the Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir. 1991); Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994). Thus, where Defendants leave all facts contested, it makes no difference whether their claims are viewed under Rule 12(b) or under Rule 56. They fail either way. Defendants actually ask not for a determination of law, but for a finding of fact. Neither a motion pursuant to Rule 12(b) nor a motion pursuant to Rule 56 makes the latter available. The third reason I will not convert the present motion to a motion for summary judgment is that defense counsel surely understands that filing a Rule 12(b)(6) motion completely dependent on viewing every factual issue from Defendants perspective ignores very clear and well-established law. A district court considering a motion to dismiss is bound to construe as true the facts presented in the plaintiffs complaint. Murrell v. School District No. 1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999). Defendants are so far outside a reasonable effort in this regard that their motion to dismiss could be regarded as a disingenuous attempt to argue Defendants case at the earliest possible point or simply to create paperwork to which Plaintiffs must respond.
Factual Issues
It appears the only facts not contested are that Alfred Flores was Patricia Espinosas fourth and fifth grade teacher, and that at the time, Flores was employed by Albuquerque Public Schools (APS). Beyond that, Plaintiffs and Defendants discuss two different scenarios. Espinosa accuses Flores of shockingly inappropriate comments and a pattern and practice of sexual innuendo and touching and rubbing in a sexually offensive manner.
Defendants insist, on the other hand, that Flores contact with Espinosa was nothing beyond friendly, and that Flores actions . . . simply does [sic] not rise to the level of outrageous conduct. Defendants position depends on specific findings that Plaintiff has not alleged any facts that establish that Teacher Flores conduct toward Plaintiff evidences any sexual harassment or any conduct that shocks the conscience.
Plaintiffs own testimony establishes that any alleged conduct was far from sexual in nature. As Plaintiff did not allege sexual abuse in any form, the facts establish that, at most, there may have been some friendly touching. This contact between Teacher Flores and Plaintiff is insufficient to establish a constitutional claim of sexual harassment.
Teacher Flores conduct was not unreasonable under the circumstances. . . . Completely ignoring Fed.R.Civ.P. 8(a) and its meager requirement of a short and plain statement of the claim, Defendants contend that the physical contact alleged in the Amended Complaint is inadequate to describe a constitutional deprivation.
Defendants insist the acts at issue were never of a nature so offensive or inappropriate as to be of any concern. Defendants position, however, refuses to accept words of the Amended Complaint by their plain meaning.
Defendants also argue that qualified immunity provides protection to a teacher as he acts to fulfill discretionary duties, but again, Defendants refuse to reference statements as given in the Amended Complaint or to account for allegations such as rubbing in a sexually offensive manner. Finally, Defendants argue that if any constitutional right was violated, that right was not clearly established at the time of the alleged incidents, 1997-1998, and a reasonable teacher could not have known that the alleged conduct was clearly prohibited by law. Once more, Defendants avoid the allegations of the Amended Complaint. In addition, they misrepresent the case law.
Qualified Immunity
Qualified immunity shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Baptiste v. J. C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998), quoting Harlow v. Fitzgeral, 457 U.S. 800, 818 (1982). An objective standard is applied to determine whether the right allegedly violated was clearly established at the time. Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1026 (10th Cir. 1994). The burden is placed on Plaintiffs. Anderson v. Creighton, 483 U.S. 635, 638-640; LawMaster v. Ward, 125 F.3d 1341, 1350 (10th Cir. 1997).
Once the defense of qualified immunity is raised, a plaintiff must establish that the contours of the asserted right were sufficiently clear that a reasonable official would understand that what he is doing violated that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The first inquiry must be whether a constitutional right would have been violated on the facts alleged, second, assuming the violation is established, the question whether the right was clearly established must be considered with specificity. Saucier v. Katz, 2001 WL 672265, ___ U.S. ___, ___ ( 2001 ). [I] f a violation could be made out on a favorable view of the parties submissions, the next, sequential step is to ask whether the right was clearly established. Id.
The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular . . . conduct. Id. If a defendants mistake as to what the law requires is reasonable, the defendant is entitled to the immunity defense. Id.
This is surely not what Defendants put forward by the pending motion. Defendants here raise no contention that the facts as alleged do not violate a constitutional right. Defendants make no argument that the facts stated in the Amended Complaint, if proven, fail to present circumstances offensive to substantive due process, but rather Defendants merely deny the facts as alleged. Defendants describe the events at issue in their own terms and attempt to re-characterize in its entirety the situation presented by the Plaintiffs. This serves no purpose.
Plaintiffs clearly state a case on which relief can be granted. Plaintiffs allege facts which, if proven, demonstrate violations which not only offend substantive due process, but also should have been immediately apparent as legally proscribed. See: Anderson v. Creighton, 483 U.S. 635 (1987). In other words, Plaintiffs allegations sufficiently establish a prima facie case of sexual harassment of a student by a teacher, identify a specific constitutional right allegedly violated and define a right clearly established at the time of the alleged wrongful conduct. This is enough to survive Defendants attack on the sufficiency of the Amended Complaint. Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992), cert. denied 507 U.S. 914 (1993).
Where Plaintiffs allegations state actionable claims, Defendants motion must assume the normal burden of a movant for summary judgment of establishing that no material facts remain in dispute that would defeat the claim of qualified immunity. Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir. 1989); Jantz v. Muci, 976 F.2d 623, 672 (1992). Yet, Defendants do not meet this standard. Defendants mere denials and re-framing of the factual circumstances are insufficient even to create a need on Plaintiffs part to refute. See: Abeyta v. Chama Valley Independent School District, No. 19, 77 F.3d 1253 (10th Cir. 1996).
The pending motion fails to raise an issue of qualified immunity in a manner which provokes Plaintiffs obligation to establish the contours of the established right. The motion also neglects to frame an issue which requires a determination. First, Defendants posit their motion on cases where the plaintiff failed to allege physical or sexual contact, certainly not the situation in this case where the Amended Complaint adequately notices pervasive and offensive contacts.
Defendants also argue that the conduct, despite how it is alleged, was neither sexual nor offensive, but merely friendly. This position simply contradicts the Amended Complaint. It raises no issue of law. Finally, Defendants conclude that physical, sexual contact of a student by a teacher does not violate law which was clearly established at the time. This argument can hardly be described as an accurate reflection of the case law, and Defendants present no authority to support it.
Even considering the deposition testimony attached to Defendants motion, Defendants view of the facts is unsupportable. For example, Defendants insist that the contact alleged in the Amended Complaint was friendly in nature and constituted nothing out of the ordinary.
However, the deposition testimony attached to the motion includes the following:
Q. What would he do?
A. He would hug me and he would rub my back. He would touch my back.
Q. When he came to you from the front, would he give you a hug front on, and then touch your back?
A. Yes. With one hand, he would come — he would approach me from the front, and he would hug me. With one hand, he would always touch me.
Q. How often would he hug you?
A. Every day, when I would ask him any type of question, he would always come. He would always hug me, always put his hand down my shirt before I left for the day.
Q. Did he ever rub his hand between your legs?
A. Sometimes on the inside.
Q. While you were standing there or while you were sitting?
A. While I was sitting.
Q. Did you ever sit on his lap?
A. Yes. Many times he asked me to sit on his lap.
Q. Did you?
A. No.
. . .
Q. So when you said, He touched the inside of your leg, were you sitting next to him?
A. Yes.
While Defendants contend that Plaintiffs allegations unfairly term the conduct at issue sexually offensive, these passages tend to illustrate otherwise.
Similarly, where Plaintiffs allege that Flores conduct caused Espinosa to stay away from her class for a substantial period of time, Defendants cannot support their argument that the conduct at issue was harmless. If the facts are as Plaintiffs state them, Plaintiffs pose an actionable case, and Defendants denial of the conduct at issue, including APSs denial of knowledge, can at this point neither undermine the Amended Complaint nor meet the standard required of a Rule 12(b)(6) motion: to establish there exists no set of facts on which Plaintiffs can prevail.
To paraphrase the Supreme Courts latest statements on qualified immunity, the only question requiring resolution is whether [t]aking into account the particular circumstances confronting the defendant, an identically situated individual could have believed his actions were lawful. Saucier v. Katz, supra, concurring opinion of Justices Ginsburg, Stevens and Breyer at p. ___. Nothing more and nothing less need be answered in this case. Id. Nevertheless, Defendants here refuse to take the particular circumstances in the light most favorable to Plaintiffs, and by this refusal, Defendants fail to present anything that demands determination, much less warrants a blanket declaration that Defendants are protected by qualified immunity. Defendants argument that Flores cannot be held liable pursuant to Title IX, 20 U.S.C. § 1681, accomplishes nothing, as well. The Amended Complaint notices both a Title IX case and a cause of action pursuant to Section 1983. The latter makes Flores a proper defendant.
Defendants therefore argue against individual liability under Title IX when the Amended Complaint makes no such claim, and in order to prevail completely, Plaintiffs need not pursue a Title IX claim against Defendant Flores. Setting out which Defendant is liable under Section 1983 and which is liable under Title IX is easily accomplished by jury instructions, and particularly where the law is very clear, there is little purpose in arguing it at this point.
NOW, THEREFORE, IT IS ORDERED that Defendants Motion to Dismiss is denied.