Opinion
CV 02-891-BR.
July 29, 2004
JOHN COLETTI, HELEN DZIUBA, Tichenor, Dziuba Coletti, LLP Portland, OR, Attorneys for Plaintiff.
THOMAS S. MOORE, PATRICIA N. CONDON, Thomas S. Moore, P.C. Portland, OR, Attorneys for Defendants LaGrande School District, Charlotte McLaughlin, and Belinda Roberson.
HARDY MYERS, Attorney General, SEAN T. BRADY, Assistant Attorney General Department of Justice, Salem, OR, Attorneys for Defendants Sally Stronczek and Sandy Young.
OPINION AND ORDER
This matter comes before the Court on the Motion for Summary Judgment (#49) filed by Defendants Sandy Young and Sally Stronczek. On July 8, 2004, the Court heard oral argument on this Motion and the Motion for Summary Judgment (#56) filed by Defendants LaGrande School District, Belinda Roberson, and Charlotte McLaughlin. The Court ruled from the bench on all issues raised in both Motions except Young's Motion for Summary Judgment as to Plaintiffs' claim brought under 42 U.S.C. § 1983.
For the reasons that follow, the Court GRANTS Young's Motion as to Plaintiff's § 1983 claim.
FACTS
At oral argument the parties agreed the record supports the following factual findings when the evidence is viewed for purposes of summary judgment in the light most favorable to Plaintiff.The Lunch Buddy program is a volunteer program operated by the Community Partnership Team (CPT) of the Department of Human Services (DHS) of the State of Oregon. The program matches atrisk students with adult volunteers. According to the program guidelines, "at-risk" children are those with, among other things, low self-esteem, poor coping skills, and a fragile home situation. The purpose of the Lunch Buddy program is to provide at-risk students with a mentor once a week during the lunch hour. All Lunch Buddy activities are to take place during a school activity and on school grounds primarily during the lunch hour. Lunch Buddies often stay after lunch to read with their assigned students or to attend school activities after school hours. All Lunch Buddy activities are supposed to occur in public and with school personnel nearby. Lunch Buddies are considered agents of the State of Oregon, and the State provides tort liability coverage for them.
Defendant Sandy Young was the manager for CPT programs, including the Lunch Buddy program in La Grande. Defendant Sally Stronczek was the District Supervisor for DHS and Young's supervisor.
In December 1997, Defendant Jack Mielke, a retired Portland firefighter, applied to volunteer as a Lunch Buddy. In April 1998, Young interviewed Mielke for approximately 30 minutes and performed a criminal background check and a DMV check. Mielke had no criminal record. Young required Mielke to produce three written references. Two parents from the La Grande wrestling program (Mielke had a son in that program) and a member of the La Grande City Council provided references, apparently on a form provided by CPT. All references were positive, and they recommended Mielke as a volunteer for the Lunch Buddy program. Young did not personally contact any of Mielke's references, but she relied on the written recommendations. Based on Mielke's application, his references, the interview, and the fact that he was a retired Portland firefighter, Young approved Mielke as a Lunch Buddy volunteer and assigned him to Willow Elementary School in La Grande. Stronczek did not participate in Young's decision to approve Mielke as a Lunch Buddy.
Young trained Mielke for the Lunch Buddy program. She provided an outline and a videotape of the program requirements and went through the outline page-by-page with Mielke. The training took approximately two hours.
Defendant Charlotte McLaughlin was principal of Willow Elementary during the time Justin Love was a student there. Defendant Belinda Roberson was Love's third-grade teacher during the 1999-2000 school year and continues to teach at Willow Elementary. The school was responsible for assigning Mielke to a particular student and for supervising Mielke's interaction with the student. The parties admit "the school" assigned Mielke to be Love's Lunch Buddy beginning late in the 1997-98 school year, which was the end of Love's first-grade year. There is no evidence in the record that either McLaughlin or Roberson was responsible for matching Love with Mielke.
The parties' fact statements do not provide a clear picture of Mielke's actions as a Lunch Buddy or a clear timeline of events. Nonetheless, it appears Mielke continued as Love's Lunch Buddy throughout Love's second- and third-grade years until Young terminated him as a volunteer on July 17, 2000.
Near the end of Love's third-grade year (1999-2000), his class participated in a swimming program. Although the School District Defendants did not inform Mielke of the swimming lessons nor invite him to attend, Mielke attended a swimming lesson and got into the pool with Love. Roberson was present at this swim lesson, and she testified the swim instructor "said that it was fine if he got in and helped, as long as they listened and followed the instructions that they were doing. And so he participated that day, but was not allowed to after that."
Roberson contends she observed Love "fondling himself once and rubbing up against another student once," but she did not believe this was abnormal behavior for a boy Love's age. Roberson, however, told the police officer who arrested Mielke that she "caught Justin masturbating a couple of times in class and [he] had made other students uncomfortable by rubbing up against others with is [sic] body while they are standing in line." Roberson also told the detective "she had observed Jack Mielke rubbing Justin Love's back at school in a manner that made her `uncomfortable,'" and "other students in the class advised her that they too were `uncomfortable' with the manner in which Jack Mielke was rubbing Justin Love." Mielke also was allowed to sit in Roberson's classroom and to hold Love's hand while Roberson was reading to the class.
During Love's third-grade year, McLaughlin met with Angela Bennett (Love's mother) and Mielke. Plaintiff has presented evidence that during the meeting McLaughlin suggested Mielke take Love to a movie or game outside of school. McLaughlin, however, denies she made such a suggestion.
At some point, McLaughlin called Young and told her that Mielke had expressed an interest in spending more time with Love outside of school. McLaughlin told Young she already had discussed this with Love's mother. Young responded, "That is your call. I cannot control what happens — I mean, I can't control what happens outside of the lunch buddy thing. . . . I don't know enough about the relationship to know whether it's good or bad. That's your call." Young testified she neither encouraged nor discouraged Mielke from meeting with Love off-campus.
At some point, probably during Love's third-grade year, Mielke started spending time with Love outside of school. Love's mother approved of these meetings, some of which occurred at Mielke's home.
Love suffered from a condition that caused him to have sudden and involuntary bowel movements. On some occasions when Love visited Mielke, he soiled his pants. On these occasions, he would take a bath at Mielke's house. It was during this time that Mielke abused Love. Mielke also gave Love an enema on at least one occasion, and one of the original counts of abuse against Mielke stems from this incident.
It is undisputed that Mielke sexually abused Love and that Mielke groomed Love for this abuse while participating in the Lunch Buddy program. In the fall of 2000, Mielke pled guilty to Attempted Unlawful Sexual Penetration I and two counts of Attempted Sexual Abuse I. He is now in prison. The Court has entered an order of default against him in this case.
Young did not receive any complaints about Mielke until approximately May 2000. Young was not informed of Roberson's observations of Love and Mielke. In May 2000, McLaughlin told Young that Mielke had interrupted a school assembly with a loud outburst and that Mielke had once stormed into McLaughlin's office when Love was there. Based on these incidents, Young terminated Mielke's participation in the Lunch Buddy program by letter on July 17, 2000. Mielke told Love's mother that Mielke had been terminated as a Lunch Buddy, but Bennett never contacted the school or anyone else to determine the reason for Mielke's termination. Mielke told Bennett that he was terminated because Roberson did not like him and was jealous because Mielke was able to get Love to finish his homework and Roberson could not.
STANDARDS
Fed.R.Civ.P. 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Id.
An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Id. A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir. 1990).
The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001).
DISCUSSION
An individual whose federal constitutional rights have been violated by a public official acting under color of state law may bring an action against the official for damages pursuant to 42 U.S.C. § 1983. Orin v. Barclay, 272 F.3d 1207, 1214 (9th Cir. 2001). The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees citizens the right to be free from "state-imposed violations of bodily integrity," including sexual abuse by state employees. See Plumeau v. School Dist. #40 of Yamhill County, 130 F.3d 432, 438 (9th Cir. 1997).
Generally, however, "state actors may only be held liable under § 1983 for their own acts, and not for the violent acts of third parties." Ruiz v. McDonnell, 299 F.3d 1173, 1182 (10th Cir. 2002) (citing DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 197 (1989)). "[A] state's failure to protect an individual from private violence simply does not constitute a violation of the Due Process Clause." DeShaney, 489 U.S. at 197. The following are the only exceptions to this rule: 1) the "special-relationship" exception and 2) the "danger-creation" exception.
Under the special-relationship exception, a state actor may be held liable under § 1983 when "the State takes a person into its custody and holds him there against his will." Id. at 199-200. "When the government creates a special relationship with a person by placing him in a vulnerable situation, the substantive component of the Due Process Clause obligates the government to provide for that person's basic needs and to protect him from deprivations of liberty." Wang v. Reno, 81 F.3d 808, 818 (9th Cir. 1996) (citing DeShaney, 489 U.S. at 199-200). It is undisputed, however, that Love was never in state custody. The special-relationship exception, therefore, does not apply.
The second exception applies when the state affirmatively places an individual in a dangerous situation. Huffman v. County of Los Angeles, 147 F.3d 1054, 1059 (9th Cir. 1998). To prevail under this theory, Plaintiff must show Young "participated in creating a dangerous situation, and acted with deliberate indifference to the known or obvious danger in subjecting the plaintiff to it." Id. (internal quotation and citation omitted, emphasis in Huffman). Evidence of gross negligence is not sufficient. Id.
Plaintiff argues Young's conduct satisfied this test because Young did not adequately screen Mielke before approving him for the Lunch Buddy program. Plaintiff asserts Young should have asked more questions when she interviewed Mielke, and her failure to do so constitutes deliberate indifference.
As noted, Young approved Mielke to serve as a volunteer in a program that required Mielke to spend one hour per week with a child. The staff at Willow Elementary, however, made the decision to pair Mielke with Love, and Young did not participate in that decision. The Lunch Buddy program guidelines required all interactions between volunteers and students to take place at the school in the presence of other adults. Young did not approve any contact between Love and Mielke beyond these parameters. When McLaughlin called Young and told her Mielke wanted to spend time with Love outside of school, Young told her "I don't know enough about the relationship to know whether it's good or bad. That's your call." Young testified she neither encouraged nor discouraged McLaughlin from allowing Mielke to meet with Love off campus. Plaintiff, however, contends Young's failure to expressly prohibit contact between Mielke and Love outside of school constitutes approval of that contact and is evidence of deliberate indifference to a known or obvious danger. The record, however, does not contain any evidence that Mielke was an obvious danger to children nor that Young knew or suspected Mielke presented a danger to children at the time Young screened him as a volunteer. Young, therefore, could not have acted with deliberate indifference when she approved Mielke's participation in the Lunch Buddy program. In addition, the record does not support a conclusion that Young later became aware of any conduct that suggested Mielke presented an obvious danger and or that she failed to act on any such information. Accordingly, the Court concludes Young is entitled to summary judgment on Plaintiff's § 1983 claim.
CONCLUSION
For these reasons, the Court GRANTS Defendant Young's Motion for Summary Judgment (#49) as to Plaintiff's § 1983 claim.
IT IS SO ORDERED.