Doe v. Oologah-Talala Independent School District No. 4 of Rogers County, Oklahoma

United States District Court

for the Northern District of Oklahoma

Case No. 21-CV-240-JDR-SH

Jane Doe No. 2; Jane Doe No. 3,

Plaintiffs,

versus

Oologah-Talala Independent School District No. 4 of

Rogers County, Oklahoma, also known as Oologah-Talala

Public Schools; et al.,

Defendants.

OPINION AND ORDER

Plaintiffs Jane Doe No. 2 and Jane Doe No. 3 allege that Defendant

Trent Winters subjected them to sexual harassment while various other De-

fendants knew of the harassment and failed to report it. Dkt. 23 at ¶ 17. De-

fendant Dewilton Rhoden, the School Resource Officer, has moved to dismiss

the operative complaint [Dkt. 28], arguing that Plaintiffs have failed to plead

sufficient facts to state claims for relief under 42 U.S.C. § 1983 or Article 2 of

the Oklahoma Constitution, civil conspiracy, and negligence per se. For the

following reasons, Officer Rhoden’s motion to dismiss is GRANTED IN

PART and DENIED IN PART.

Plaintiffs were students at the school district and members of the high

school basketball team. Dkt. 23 at ¶ 28. They allege that Mr. Winters, a school

district employee and assistant basketball coach, subjected them to sexual

harassment, including inappropriate sexual and lewd comments. Id. at ¶¶ 29-

30. Plaintiffs also allege that Officer Rhoden had knowledge of Mr. Winters’s

inappropriate behavior and failed to properly report it or conduct an

No. 21-CV-240

independent investigation into the allegations. Id. at ¶¶ 44, 130. The question

before this Court is whether Plaintiffs’ second amended petition, the now-

operative pleading, states a viable claim for relief.

When considering this question, this Court must determine whether

the pleading contains enough “factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). At this stage, the

Court must accept the Plaintiffs’ well-pleaded factual allegations as true and

construe them in the light most favorable to the Plaintiffs. Doe v. Sch. Dist. No.

1, Denver, Colorado, 970 F.3d 1300, 1304 (10th Cir. 2020) (quoting S.E.C. v.

Shields, 744 F.3d 633, 640 (10th Cir. 2014)). The Court will “ʻdisregard con-

clusory statements and look only to whether the remaining, factual allegations

plausibly suggest the defendant is liable.’” Doe v. Hutchinson, 728 F. App’x

829, 832 (10th Cir. 2018) (quoting Khalik v. United Air Lines, 671 F.3d 1188,

1191 (10th Cir. 2012)).

Officer Rhoden argues that all claims against him should be dismissed

for failure to meet the Iqbal/Twombly plausibility standard. Dkt. 28 at 5-8. He

provides alternative arguments as to why each claim should be dismissed.

First, Officer Rhoden argues that the § 1983 claims brought against him in his

official capacity1 are duplicative of the claims brought against the school dis-

trict. Dkt. 28 at 8-9. This Court agrees. Claims brought against an individual

in his official capacity are “ʻonly another way of pleading an action against an

entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165

(1985) (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55

(1978)); see also Griffin v. Indep. Sch. Dist. No. 1 of Tulsa Cty., Okla., No. 13-

1 Plaintiffs claim that Officer Rhoden was acting as an agent of the school district at

all times relevant to Plaintiffs’ claims. Dkt. 23 at ¶13. The school allegedly provided him

with office space on the school campus, paid $19,500.00 of his annual salary, and had au-

thority to approve his hiring or firing. Id. The Court treats Officer Rhoden as an agent of

the school district for purposes of this Order and takes no position as to whether he acted

as an agent of any other unnamed entity.

No. 21-CV-240

CV-0702-CVE-FHM, 2013 WL 6048988, at *3 (N.D. Okla. Nov. 14, 2013)

(“If a governmental entity is already a defendant in a lawsuit, then any official

capacity claims against its employees are redundant and may be dismissed.”).

There is no basis for suing Officer Rhoden separately from the school district.

Accordingly, Officer Rhoden’s motion to dismiss the claims brought against

him in his official capacity under § 1983 is GRANTED.

Next, Officer Rhoden argues that Plaintiffs cannot assert claims

against him individually under § 1983. Dkt. 28 at 14-24. He claims that Plain-

tiffs have failed to allege that he affirmatively acted in a way which deprived

them of their equal protection and due process rights. Id. at 19-22. To state a

claim for relief under § 1983, plaintiffs must allege: (1) that a right secured by

the Constitution or laws of the United States was violated, and (2) that the

alleged violation was committed by a person acting under the color of state

law. Hall v. Oklahoma Dep’t of Human Servs., No. 15-CV-0670-CVE-TLW,

2016 WL 2903266, at *3 (N.D. Okla. May 18, 2016) (citing West v. Atkins, 487

U.S. 42, 48 (1988)). “[T]o establish personal liability in a § 1983 action, it is

enough to show that the official, acting under the color of state law, caused

the deprivation of a federal right.” Graham, 473 U.S. at 166. Here, Plaintiffs

allege that Officer Rhoden was acting under the color of state law. Dkt. 23 at

¶ 116. The Court must then look to whether Plaintiffs have sufficiently

pleaded constitutional violations.

Under the Due Process Clause of the Constitution, students have a

property right in public education. Edwards For & in Behalf of Edwards v. Rees,

883 F.2d 882, 885 (10th Cir. 1989) (citing Goss v. Lopez, 419 U.S. 565 (1975)).

Generally, state actors can only be held liable under § 1983 for direct viola-

tions of this right. Isaacs on behalf of Isaacs v. Konawa Pub. Sch. Dist. I-004, No.

CIV-20-358-KEW, 2021 WL 2668802, at *4 (E.D. Okla. June 29, 2021), aff’d

sub nom. Isaacs v. Konawa Pub. Sch., No. 21-7016, 2022 WL 1100402 (10th

Cir. Apr. 13, 2022) (quoting Ruiz v. McDonnell, 299 F.3d 1173, 1182 (10th Cir.

2002), cert. denied, 538 U.S. 999 (2003)). State actors will not ordinarily be

No. 21-CV-240

held responsible when the acts of a third party cause the deprivation. Id.

There are two recognized exceptions to this general rule. Sutherlin v. Indep.

Sch. Dist. No. 40 of Nowata Cty., Okla., 960 F.Supp.2d 1254, 1260 (N.D. Okla.

May 13, 2013) (quoting Armijo By & Through Chavez v. Wagon Mound Pub.

Sch., 159 F.3d 1253, 1260 (10th Cir. 1998)). The first exception applies when

the state actor has a special relationship with the harmed plaintiff. Id. The

second is when the state actor affirmatively creates the danger which harmed

the plaintiff. Id.

Here, Plaintiffs’ claims against Officer Rhoden arise out of his alleged

failure to report or investigate the sexual harassment while acting as the

school resource officer. Dkt. 23, ¶44. But Plaintiffs have not alleged a special

relationship that would allow Officer Rhoden to be held liable for Mr. Win-

ters’s conduct. The 10th Circuit has established that special-relationship

claims fail when the state actor is a school district or its employees and the

plaintiff is a student because compulsory school-attendance laws “do not

spawn an affirmative duty to protect under the Fourteenth Amendment.”

Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 994 (10th Cir. 1994). Plain-

tiffs have not sufficiently pleaded a claim for violation of their substantive due

process rights under a special-relationship theory.

Nor have Plaintiffs alleged that Officer Rhoden created the danger that

led to the harm. The danger-creation theory requires plaintiffs to show, as a

threshold matter, that “a state actor ʻaffirmatively act[ed] to create, or in-

crease[d] a plaintiff’s vulnerability to, danger from private violence.” T.D. v.

Patton, 868 F.3d 1209, 1222 (10th Cir. 2017) (quoting Currier v. Doran, 242

F.3d 905, 917 (10th Cir. 2001)). Here, Plaintiffs claim Officer Rhoden failed

to properly report or conduct an independent investigation into the alleged

sexual harassment. Dkt. 23 at ¶44. But “negligence or inaction are not

enough to establish affirmative conduct.” Isaacs on behalf of Isaacs, 2021 WL

2668802, at *5 (citing Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1173 (10th Cir.

2013)). Plaintiffs have wholly failed to allege any facts which point to an

No. 21-CV-240

affirmative action by Officer Rhoden; they instead focus on his inaction or

what he failed to do. Officer Rhoden’s motion to dismiss Plaintiffs’ substan-

tive due process claim is GRANTED.

As to whether the allegations against Officer Rhoden amount to a vio-

lation of the Equal Protection Clause of the Constitution, the 10th Circuit

recognizes that “a governmental official or supervisory employee may be held

liable under section 1983 upon a showing of deliberate indifference to known

sexual harassment.” Murrell v. Sch. Dist. No. 1, Denver, 186 F.3d 1238, 1250

(10th Cir. 1999). “Deliberate indifference may be shown by a failure to act to

halt the misbehavior.” Doe v. Sch. Dist. No. 1, Denver, Colorado, 970 F.3d 1300,

1314 (10th Cir. 2020) (citing Davis ex rel. LaShonda D. v. Monroe Cty. Bd. Of

Educ., 526 U.S. 629, 654 (1999)); see also Noland v. McAdoo, 39 F.3d 269, 271

(10th Cir. 1994) (Deliberate indifference may be found where “a supervisor

or employer participates in or consciously acquiesces in sexual harassment by

an outside third party or by co-workers.”).

Plaintiffs have sufficiently pleaded that Officer Rhoden knew of Mr.

Winters’s alleged sexual harassment and acquiesced in his behavior. See, e.g.,

Murell, 186 F.3d at 1250. In the operative complaint, Plaintiffs claim that Of-

ficer Rhoden became aware of Mr. Winters’s alleged sexual harassment on

November 4, 2019. Dkt. 23 at ¶ 130. Despite this knowledge, Officer Rhoden

subsequently failed to report the allegations to the proper authorities or con-

duct any type of independent investigation into the allegations. Dkt. 23 at ¶

44. This allegation is sufficient to establish deliberate indifference at this stage

of the case. Plaintiffs have sufficiently pleaded a claim under § 1983 for viola-

tion of their equal protection rights.

Officer Rhoden argues that, even if Plaintiffs stated an equal protection

claim, that claim is barred by the doctrine of qualified immunity. Dkt. 28 at

18-19. He contends that there is no “ʻclearly established’ constitutional right

to have Title IX complaints investigated in a manner that meets Plaintiffs’

No. 21-CV-240

approval.” Id. at 19. Plaintiffs maintain that Officer Rhoden had a clearly es-

tablished duty to report the alleged abuse. Dkt. 34 at 11-12.

Qualified immunity shields public officials “ʻfrom damages actions

unless their conduct was unreasonable in light of clearly established law.’”

Gutierrez v. Cobos, 841 F.3d 895, 899 (10th Cir. 2016) (quoting Estate of Booker

v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014)). Once a defendant asserts qual-

ified immunity, the burden shifts to the plaintiff to show that: (1) the defend-

ant’s actions violated a federal constitutional or statutory right, and (2) the

right was clearly established at the time of the defendant’s unlawful conduct.

Id. at 900. The court is required to grant qualified immunity if the plaintiff

fails to satisfy this burden. Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208

(10th Cir. 2017). As discussed above, Plaintiffs have sufficiently pleaded that

Officer Rhoden violated their equal protection rights, so the first requirement

is satisfied.

A right is considered clearly established where “ʻa Supreme Court or

Tenth Circuit decision [is] on point, or the clearly established weight of au-

thority from other courts must have found the law to be as the plaintiff main-

tains.’” Kerns v. Indep. Sch. Dist. No. 31 of Ottawa Cty., 984 F.Supp.2d 1144,

1154 (quoting Cordova v. Aragon, 569 F.3d 1183, 1192 (10th Cir. 2009)). Exist-

ing precedent must “ʻplace[] the statutory or constitutional question beyond

debate.’” Payne v. Vian Pub. Schs., No. CIV-18-014-RAW, 2018 WL 4265212,

at *2 (E.D. Okla. Sept. 6, 2018) (quoting Knopf v. Williams, 884 F.3d 939, 944

(10th Cir. 2018)). The heart of the issue is whether the defendant was “ʻon

notice that the conduct in question could violate the plaintiff’s constitutional

rights.’” Kerns, 984 F. Supp.2d at 1154 (quoting DeSpain v. Updhoff, 264 F.3d

965, 979 (10th Cir. 2001)).

Rather than pointing to a 10th Circuit or Supreme Court opinion,

Plaintiffs claim that Officer Rhoden was put on notice that his inaction would

violate their equal protection rights by Okla. Stat. tit. 10A, § 1-2-101(B)(2), a

No. 21-CV-240

statute requiring school employees to report abuse and neglect to the Depart-

ment of Human Services or local law enforcement. Dkt. 34 at 7-8. Generally,

courts grant qualified immunity when the plaintiff fails to cite appropriate au-

thority. See, e.g., Patterson v. Rural Water Dist. 2, 438 F.Supp.3d 1258, 1275

(W.D. Okla. 2020). But courts also recognize that “[b]ecause they turn on a

fact-bound inquiry, ʻqualified immunity defenses are typically resolved at the

summary judgment stage’ rather than on a motion to dismiss.” Thompson v.

Ragland, 23 F.4th 1252, 1256 (10th Cir. 2022) (quoting Thomas v. Kaven, 765

F.3d 1183, 1194 (10th Cir. 2014)); see also Buck v. Rhoades, 598 F.Supp.3d 1181,

1196 (N.D. Okla. 2022) (holding that additional facts are required to “defini-

tively determine whether defendants are entitled to qualified immunity”).

The Court has identified several cases establishing that deliberate in-

difference to reports of alleged sexual harassment can amount to an equal pro-

tection violation. See, e.g., Murrell, 186 F.3d at 1250; Doe, 970 F.3d at 1314;

Noland, 39 F.3d at 271. In view of this precedent, a reasonable person could

determine that Officer Rhoden was on notice that his failure to report or in-

vestigate the alleged sexual harassment could violate Plaintiffs’ equal protec-

tion rights. At this stage, Officer Rhoden is not entitled to qualified immunity.

Accordingly, Officer Rhoden’s motion to dismiss Plaintiffs’ equal protection

claim is DENIED.

Officer Rhoden also argues that Plaintiffs’ claims brought under Arti-

cle 2, sections 2 and 7 of the Oklahoma Constitution should be dismissed be-

cause Oklahoma law does not afford a private right of action for state consti-

tutional violations. Dkt. 28 at 12 (citing Barrios v. Haskell Cty. Pub. Facilities

Auth., 432 P.3d 233, 238 (Okla. 2018)). The Court agrees. In Bosh v. Cherokee

Cty. Bldg. Auth., the Oklahoma Supreme Court opened the door for a poten-

tial private right of action under Article 2, section 30 of the Oklahoma Con-

stitution for excessive force. 305 P.3d. 994, 1001 (Okla. 2013). But Bosh has

since been construed to agree with prior interpretations of Oklahoma law in

finding a private right of action against Oklahoma governmental entities

No. 21-CV-240

only.2 Because Officer Rhoden is an individual and not a governmental entity,

his motion to dismiss the Oklahoma Constitutional claims is GRANTED

with prejudice.

Moving to the civil conspiracy claim, Officer Rhoden argues that it

should be dismissed because Plaintiffs fail to identify a shared plan between

the Defendants or that he “was acting in a coordinated manner” with other

Defendants. Dkt. 28 at 13-14. Plaintiffs respond that they have specifically

pleaded that Officer Rhoden and the other named Defendants acted together

to abrogate Okla. Stat. tit. 10A, § 1-2-101(B)(2). Dkt. 34 at 8. To properly as-

sert a conspiracy claim, the plaintiff must “allege specific facts showing an

agreement and concerted action amongst the defendants,” and “the manner

in which the conspiracy operated.” Montgomery v. City of Ardmore, 365 F.3d

926, 940 (10th Cir. 2004). “A conclusory allegation of agreement or an alle-

gation of parallel conduct does not satisfy federal pleading requirements.”

Hicks v. FG Minerals LLC, No. CIV-19-203-TDD, 2020 WL 4004804, at *7

(E.D. Okla. July 15, 2020) (citing Twombly, 550 U.S. at 557); see also Snell v.

Tunnel, 920 F.2d 673, 702 (10th Cir. 1990) (plaintiffs must show “that there

was a single plan, the essential nature and scope of which was known to each

person who is to be held responsible for its consequences”).

Alleging that the Defendants “had a meeting of the minds to circum-

vent the state law” and to “protect Trent Winters and OTPS from criminal

2 See Carter v. Davis, No. 14-CV-178-JED-FHM, 2019 WL 4655901, at *10 (N.D.

Okla. Sept. 24, 2019) (“Bosh addressed respondeat superior liability and did not purport to

create individual liability.”); Lynch v. Bd. Of Cty. Comm’rs of Muskogee Cty., Oklahoma ex rel.

Muskogee Cty. Sheriff’s Dept., No. CIV-16-247-JHP, 2018 WL 1417172, at *11 (E.D. Okla.

Mar. 21, 2018) (“[T]he Bosh opinion only held that Oklahoma governmental entities can

be held liable for . . . violation of the Oklahoma Constitution under a theory of respondeat

superior, not individual officers . . . .”), rev’d on other grounds, 786 F. App’x 774 (10th Cir.

2019); Koch v. Juber, No. CIV-13-0750-HE, 2014 WL 2171753, at *3 (W.D. Okla. May 23,

2014) (holding that Bosh does not extend liability beyond the employer for violation of the

Oklahoma Constitution).

No. 21-CV-240

charges” is merely a conclusory statement and does not satisfy the pleading

standard for a civil conspiracy claim. Dkt. 23 at ¶¶ 157-58; see Driskill v. City

of Ada, Okla., No. CIV-09-037-RAW, 2009 WL 10733507, at *3 (E.D. Okla.

June 19, 2009) (“Here, the complaint contains nothing more than conclusory

allegations that a civil conspiracy exists, which is not enough to satisfy the

requirement of ʻconcerted action.’”). Because Plaintiffs fail to allege any facts

which would demonstrate that there was a plan to circumvent a statute and

that this plan was known by each individual defendant, including Officer

Rhoden, Snell, 920 F.2d at 702, Officer Rhoden’s motion to dismiss the civil

conspiracy claim is GRANTED.3

Last, Officer Rhoden argues that Jane Doe No. 2’s negligence per se

claim should be dismissed because Okla. Stat. tit. 10A, § 1-2-101(B)(2) does

not apply to him. Dkt. 28 at 10-11. Jane Doe No. 2 responds that the statute

was enacted to prevent tortfeasors such as Mr. Winters from abusing or har-

assing students. Dkt. 34 at 5. A negligence per se claim requires a showing

that (1) the plaintiff was injured by the violation of a statute, (2) the injury

was the type intended to be prevented by the statute; and (3) the plaintiff was

a member of the class meant to be protected by the statute. Romero v. City of

Miami, 8 F.Supp.3d 1321, 1333 (N.D. Okla. 2014) (quoting Busby v. Quail

Creek Golf & Country Club, 885 P.2d 1326, 1329 (Okla. 1994)).

The Court holds that Jane Doe No. 2 has not satisfied the first element

because she has failed to sufficiently plead that Officer Rhoden violated the

statute. The statute requires “[e]very school employee having reason to be-

lieve that a student under the age of eighteen (18) years is a victim of abuse

or neglect shall report the matter immediately to the Department of Human

3 Officer Rhoden’s motion to dismiss initially concedes that a civil conspiracy claim

necessarily falls outside the umbrella of immunity provided by the Oklahoma Governmental

Tort Claims Act. Dkt. 28 at 13. He then reverses course in his Reply. Dkt. 36 at 6. Because

the civil conspiracy claim has not been sufficiently pleaded, the Court does not analyze Of-

ficer Rhoden’s forfeited argument raised in Reply.

No. 21-CV-240

Services and local law enforcement.” Okla. Stat. tit. 10A, § 1-2-101(B)(2)(a).

Under the Oklahoma Children’s Code, Okla. Stat. tit. 10A, § 1-1-101, et seq.,

abuse is defined as “harm or threatened harm to the health, safety, or welfare

of a child by a person responsible for the child’s health, safety, or welfare . . .

.” Okla. Stat. tit. 10A, § 1-1-105(2). Importantly, a person who is responsible

for a child’s health, safety, or welfare is defined as

a parent; legal guardian; custodian; a foster parent; a person

eighteen (18) years of age or older with whom the child’s parent

cohabitates or any other adult residing in the home of the child;

an agent or employee of a public or private residential home, in-

stitution, facility or day treatment program…or an owner, opera-

tor, or employee of a child care facility….

Id. at § 1-1-105(53).

No facts have been alleged which would identify Mr. Winters, the as-

sistant basketball coach, as a person responsible for Jane Doe No. 2’s health,

safety, or welfare as defined by the Oklahoma Children’s Code. See, M.C. v.

Hollis Indep. Sch. Dist. No. 66 of Harmon Cty, Okla., No. CIV-15-343-C, 2017

WL 1102680, at *5-6 (W.D. Okla. Mar. 23, 2017). Thus, facts have not been

sufficiently pleaded to form an inference that Officer Rhoden violated the

statute which forms the basis for Jane Doe No. 2’s negligence per se claim.

Officer Rhoden’s motion to dismiss Jane Doe No. 2’s negligence per se claim

is GRANTED.

IT IS THEREFORE ORDERED that Officer Rhoden’s motion to

dismiss [Dkt. 28] is hereby GRANTED IN PART and DENIED IN

PART: it is granted as to Plaintiffs’ 42 U.S.C. § 1983 claims brought against

Officer Rhoden in his official capacity, the substantive due process claim

brought against Officer Rhoden as an individual, claims brought for violation

of the Oklahoma Constitution, the civil conspiracy claim, and Jane Doe No.

2’s negligence per se claim; it is denied as to Plaintiffs’ equal protection claim

brought under 42 U.S.C. § 1983.

No. 21-CV-240

DATED this 29th day of March 2024.

a 7 A

a“ ly

Anh) Aree —

JouN D. RUSSELL

United States District Judge

11