Thompson v. Henke

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

LAKESIHA THOMPSON, parent and next )

friend of H.L.T., a minor; and )

CHRYSTAL JENKINS, parent and next )

friend of P.J., a minor, )

)

Plaintiffs, )

)

v. ) Case No. CIV-23-00411-JD

)

GREG HENKE; and INDEPENDENT )

SCHOOL DISTRICT NO. 52, Oklahoma )

County, Oklahoma, also known as Mid-Del )

School District, )

)

Defendants. )

ORDER

Before the Court is the Motion to Dismiss Plaintiffs’ Second Amended Complaint

(“Motion”) filed by Defendant Independent School District No. 52, Oklahoma County,

Oklahoma, also known as Mid-Del School District (“the District”). [Doc. No. 48]. The

District moves to dismiss Plaintiffs Lakesiha Thompson and Chrystal Jenkins’s Second

Amended Complaint (“SAC”) [Doc. No. 33] under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). Plaintiffs filed a response in opposition (“Response”) [Doc. No.

52] to which the District replied [Doc. No. 53].1 For the reasons stated below, the Court

grants the Motion in part, dismisses the federal claims against the District, and declines to

exercise supplemental jurisdiction over Plaintiffs’ state-law claims.

1 In citing the parties’ briefing in this order, the Court uses page numbering from

the CM/ECF stamp across the top of district court docket filings.

I. BACKGROUND

This case arises from Defendant Greg Henke’s horrific sexual abuse and

exploitation of Plaintiffs’ minor children, H.L.T. and P.J. Accepting as true the well-

pleaded facts in the SAC, H.L.T. and P.J. were born with severe learning disabilities; both

children are “classified as ‘non-verbal.’” SAC ¶¶ 1–2, 13–14. H.L.T. and P.J. attended

Highland Park Elementary School, which is a school within the District, and they were in

a class with six or seven other students with special needs. Id. ¶¶ 12, 15–16, 24.

From approximately 2019 to 2021, Defendant Henke was a paraprofessional or

teacher’s aide for the District, and he was assigned to work in H.L.T. and P.J.’s class. Id.

¶¶ 12, 15. Henke’s position provided him “unfettered, unsupervised access to these

students,” and he used this access to repeatedly sexually abuse H.L.T. and P.J., capture

the abuse on his cell phone, and produce child pornography. Id. ¶¶ 16, 25. Henke abused

these children—who were approximately seven to ten years old at the time—at school

during school hours. Id. ¶¶ 16, 20–21. Plaintiffs allege that “Henke specifically targeted

H.L.T., P.J., and similar children because of their disabilities,” as he knew they “had no

ability to defend themselves, no ability to adequately comprehend (much less consent) to

what was happening to them, and no ability to verbalize these horrors to the outside

world.” Id. ¶ 22.

Defendant Henke is currently serving a 45-year federal sentence for possession of

material containing child pornography and sexual exploitation of a child. Id. ¶¶ 42–43;

see also United States v. Henke, CR-21-00137-HE (W.D. Okla.), Doc. Nos. 36, 78.

Henke was arrested by federal agents on May 13, 2021, after he met with an undercover

agent to attempt to engage in sexual activities with minors. SAC ¶ 39. He pleaded guilty

and was later sentenced on December 21, 2022. Id. ¶¶ 42–43. At Henke’s sentencing

hearing, the government noted that Henke had sexually abused other minors from 2002 to

2021, including one “young girl” with “a degenerative brain disease that took away her

mental capabilities and eventually her life.” Id. ¶¶ 45–46.

Plaintiffs allege that various actions and inactions of the District led to H.L.T. and

P.J.’s abuse. They allege that the District “had a policy/custom of leaving

paraprofessionals or teacher aides alone and unsupervised with disabled students for

extended periods, which allowed Defendant Henke to sexually abuse and exploit them on

multiple occasions.” Id. ¶ 26. “Henke was allowed to escort and supervise female

students to and in the bathroom, which was outside and away from their classroom,”

despite the fact that Plaintiff Thompson had indicated on a form that she only wanted

females to escort her daughter to the bathroom. Id. ¶¶ 27–28. In addition, Plaintiffs allege

that Defendant Henke “likely used the School District’s internet or information

technology (‘IT’) to convey the pornographic material he produced,” and if the District

had properly implemented and enforced an internet safety policy, “it would have received

an automated report of improper conduct and been required to take appropriate action.”

Id. ¶¶ 37–38.

Furthermore, Plaintiffs allege that the District “had reason to know” of H.L.T. and

P.J.’s abuse because of changes in P.J.’s behavior. Id. ¶¶ 29–30. After Defendant Henke

was assigned to her classroom, P.J. “started acting out and exhibiting signs that she no

longer wanted to go to school.” Id. ¶ 30. She regressed in her schoolwork, began

exhibiting inappropriate sexual behaviors, and would scream for hours on end. Id. School

employees had to drag her into school, and sometimes she could only last at school for 30

minutes to an hour before her mother would have to pick her up. Id. P.J. “self-soothed

through water therapy,” which “became so extensive” during the period of Henke’s abuse

that P.J. would take “up to 20 baths per day.” Id. ¶ 31. One morning in September 2021,

she “was so frustrated that she ran straight into a wall, putting her head through the wall.”

Id. P.J.’s behavioral changes allegedly put the District on notice that H.L.T. and P.J. were

being abused because “[a] person properly trained in how to address and communicate

with non-verbal students with learning disabilities would have seen these behavioral

changes as a cry for help, would have had reason to believe that the student was

experiencing trauma, and would have properly investigated/reported to authorities.” Id.

¶¶ 33–34. Moreover, Plaintiffs quote Henke as stating that “his co-workers were present

and witnessed ‘inappropriate behavior . . . going on.’” Id. ¶ 35.

Plaintiff Thompson originally sued Defendant Henke and the District in state

court. See [Doc. No. 1-1]. The District removed the action to this Court. [Doc. No. 1].

Plaintiff Thompson later “uncovered additional information” that eventually led to the

addition of Plaintiff Jenkins as a party to this action. [Doc. No. 23 at 1].

Plaintiffs raise two federal claims against the District only: one under 42 U.S.C.

§ 1983 alleging violations of the Due Process and Equal Protection Clauses of the

Fourteenth Amendment, the other under Title IX of the Education Amendments of 1972,

20 U.S.C. § 1681 et seq. SAC ¶¶ 50–83. Plaintiffs also raise tort claims against the

District, advancing theories of negligent hiring, training, retention, supervision, and

implementation and enforcement of procedures, as well as negligence per se. Id. ¶¶ 85–

99. In addition, Plaintiffs bring a claim under the Oklahoma Constitution,2 and they raise

several intentional tort claims against Defendant Henke.3 SAC ¶¶ 101–10. For relief,

Plaintiffs request compensatory and punitive damages, attorneys’ fees and costs, pre- and

post-judgment interest, and “any other relief as the Court or jury deems just and

equitable.” Id. ¶ 112.

II. LEGAL STANDARDS4

“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain

sufficient 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) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. Under this standard, the Court accepts all well-

pleaded facts as true and views them in the light most favorable to the nonmoving party.

2 Although the SAC is unclear, Plaintiffs state in their Response that they bring the

claim under the Oklahoma Constitution against the District. See Response at 30.

3 Plaintiffs filed a return of summons on Defendant Henke, see [Doc. No. 1-3], but

Henke has not appeared or filed an answer or responsive pleading. Plaintiffs have not yet

pursued a default against Defendant Henke.

4 The District argues that Plaintiff Jenkins’s claims should be dismissed under Rule

12(b)(1) “because Jenkins did not comply with the controlling statutes of limitation for

the causes of action she asserts.” Motion at 8. However, the statute of limitations is an

affirmative defense, not a jurisdictional issue. See Fed. R. Civ. P. 8(c)(1). Because the

District has not asserted any arguments regarding whether the statutes of limitations it

raises are jurisdictional, the Court examines this issue under Rule 12(b)(6).

Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice,”

and the Court must “draw on its judicial experience and common sense” to determine

whether a complaint states a plausible claim for relief. Iqbal, 556 U.S. at 678–79. “In

other words, dismissal under Rule 12(b)(6) is appropriate if the complaint alone is legally

insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861

F.3d 1081, 1104–05 (10th Cir. 2017).

III. ANALYSIS

The District moves to dismiss the SAC on several grounds. Regarding the federal

claims, the District argues that Plaintiff Jenkins’s claims are time-barred, the SAC fails to

state a claim for municipal liability under § 1983, and Plaintiffs have not stated a

plausible claim under Title IX. For the state-law claims, the District argues that Plaintiffs

have not sufficiently alleged compliance with Oklahoma’s Governmental Tort Claims Act

(“GTCA”), Jenkins’s claims are time-barred, the District is immune from Plaintiffs’

negligence claims under the GTCA, and Plaintiffs have failed to state a claim for

negligence, negligence per se, or a violation of the Oklahoma Constitution.

A. Plaintiff Jenkins’s federal claims are not barred by the statute of

limitations at the pleading stage.

Federal statutory law does not provide an express statute of limitations for claims

brought under § 1983 or Title IX. “When Congress has not established a time limitation

for a federal cause of action, the settled practice has been to adopt a local time limitation

as federal law if it is not inconsistent with federal law or policy to do so.” Wilson v.

Garcia, 471 U.S. 261, 266–67 (1985). For § 1983 claims, the appropriate local time

limitation is Oklahoma’s “two-year limitation for ‘an action for injury to the rights of

another.’” Meade v. Grubbs, 841 F.2d 1512, 1523 (10th Cir. 1988) (quoting 12 Okla. Stat.

§ 95(A)(3)), abrogated on other grounds by Schneider v. City of Grand Junction Police

Dep’t, 717 F.3d 760 (10th Cir. 2013). Because “the same state statutes [of limitations] that

apply to § 1983 claims” apply to Title IX claims, Varnell v. Dora Consol. Sch. Dist., 756

F.3d 1208, 1213 (10th Cir. 2014), the applicable limitation period for Title IX claims is

also two years.

The District asserts that Plaintiff Jenkins’s federal claims are untimely because

they were raised over two years after they accrued. The District asserts that Jenkins’s

claims accrued in August 2021 because she posted on Facebook that she first learned

about her daughter’s abuse when FBI agents notified her in August 2021. Motion at 12.

The SAC makes no mention of Plaintiff Jenkins’s meeting with the FBI or her Facebook

post; thus, to support its argument, the District has attached the Facebook post as an

exhibit to the Motion. [Doc. No. 48-1]. Because it argues that Jenkins’s claim accrued in

August 2021, the District contends that “Jenkins was required to file this action against

District by no later than by the end of August 2023, not November 2023 when she

actually filed this action against District.” Motion at 14.

This argument is unavailing. The District relies on information outside the

pleadings—namely, Jenkins’s Facebook post—to assert that her federal claims accrued in

August 2021. “But ‘[a] statute of limitations defense may be appropriately resolved on a

Rule 12(b) motion when the dates given in the complaint make clear that the right sued

upon has been extinguished.’” Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir.

2022) (alteration in original) (emphasis added) (quoting Sierra Club v. Okla. Gas & Elec.

Co., 816 F.3d 666, 671 (10th Cir. 2016)). The SAC does not allege when Plaintiff Jenkins

knew or had reason to know of the abuse her daughter suffered. Cf. Baker v. Bd. of

Regents, 991 F.2d 628, 632 (10th Cir. 1993) (“A civil rights action accrues when the

plaintiff knows or has reason to know of the injury which is the basis of the action.”). It is

not Plaintiffs’ burden to allege such facts; the statute of limitations is an affirmative

defense, and a “plaintiff need not anticipate in the complaint an affirmative defense that

may be raised by the defendant.” Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299

(10th Cir. 2018).

Thus, because it is not clear from the face of the SAC that Plaintiff Jenkins’s

federal claims are time-barred, the District’s statute of limitations defense fails at the

pleading stage.

B. Plaintiffs have not stated a municipal liability claim under the Equal

Protection or Due Process Clauses of the Fourteenth Amendment.

Plaintiffs have sued the District under 42 U.S.C. § 1983, alleging that “[t]he

inadequate policies and resulting failures of the School District allowed Defendant Henke

to violate Plaintiffs’ 14th Amendment rights to Due Process and Equal Protection.” SAC

¶ 59. The District moves to dismiss this claim, arguing that “[t]here are no facts alleged to

show District was on notice of any inappropriate conduct by Henke or that the alleged

victims—or their families—reported any suspicious behavior of Henke’s to District.”

Motion at 17. Further, the District contends, the SAC “does not specifically allege that

the actions/inactions of District caused the alleged harm to H.L.T. or P.J. nor does it

allege that District had actual notice of the actions of Henke.” Id. at 17–18.

Section 1983 provides a cause of action against any “person” who, under color of

state law, deprives another person of their constitutional or civil rights. 42 U.S.C. § 1983.

Like a municipality, a public school district is a suable “person” under § 1983, but it

cannot “be held liable for the actions of its employees under the theory of respondeat

superior.” Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000) (citing Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 691 (1978)); see also City of Canton v. Harris, 489 U.S.

378, 385 (1989) (“[A] municipality can be found liable under § 1983 only where the

municipality itself causes the constitutional violation at issue. Respondeat superior or

vicarious liability will not attach under § 1983.” (citation omitted)).

To state a § 1983 claim against a school district, “a plaintiff must allege (1) that

the [district] had a policy or custom . . .; (2) that the [district] was deliberately indifferent

to the obvious consequences of the policy; and (3) that the policy caused the plaintiff’s

constitutional injury.” Lee v. Poudre Sch. Dist. R-1, 135 F.4th 924, 934 (10th Cir. 2025)

(footnote and citations omitted) (applying Monell to a substantive due process claim

against a school district under § 1983); see also Murrell v. Sch. Dist. No. 1, 186 F.3d

1238, 1249–50 (10th Cir. 1999) (applying Monell to an equal protection claim against a

school district under § 1983).

The first element—that the district had an official policy or custom—“can take

multiple forms.” Lee, 135 F.4th at 934.

A municipal policy or custom may take the form of (1) “a formal regulation

or policy statement”; (2) an informal custom “amoun[ting] to ‘a widespread

practice that, although not authorized by written law or express municipal

policy, is so permanent and well settled as to constitute a custom or usage

with the force of law’”; (3) “the decisions of employees with final

policymaking authority”; (4) “the ratification by such final policymakers of

the decisions—and the basis for them—of subordinates to whom authority

was delegated subject to these policymakers’ review and approval”; or (5)

the “failure to adequately train or supervise employees, so long as that

failure results from ‘deliberate indifference’ to the injuries that may be

caused.”

Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Brammer-

Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189–90 (10th Cir. 2010)).

To satisfy the second element, Plaintiffs must plausibly allege that the District

acted with deliberate indifference, which “is a stringent standard of fault, requiring

[allegations] that a municipal actor disregarded a known or obvious consequence of his

action.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). “The deliberate

indifference standard may be satisfied when the municipality has actual or constructive

notice that its action or failure to act is substantially certain to result in a constitutional

violation, and it consciously or deliberately chooses to disregard the risk of harm.”

Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). Notice can either be shown by

alleging “the existence of a pattern of tortious conduct” or that “a violation of federal

rights is a ‘highly predictable’ or ‘plainly obvious’ consequence of a municipality’s action

or inaction.” Id. at 1307–08 (quoting Brown, 520 U.S. at 409).

For the third element, causation, “it is not enough for a § 1983 plaintiff merely to

identify conduct properly attributable to the municipality.” Brown, 520 U.S. at 404.

Rather, “[t]he plaintiff must also demonstrate that, through its deliberate conduct, the

municipality was the ‘moving force’ behind the injury alleged.” Id. In other words, a

plaintiff “must demonstrate a direct causal link between the municipal action and the

deprivation of federal rights.” Id. Where “the municipal policy or practice is itself not

unconstitutional” because “the municipal liability claim is based upon inadequate

training, supervision, [or] deficiencies in hiring,” then “[t]he causation element is applied

with especial rigor.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770

(10th Cir. 2013) (quoting Martin A. Schwartz, Section 1983 Litigation: Claims and

Defenses § 7.12 (2013)).

Regarding the first element, Plaintiffs point to three policies or customs that

potentially provide the basis for their municipal liability claim. First, they allege that the

District had an informal custom of “allow[ing] employees to be alone with special-needs

children for extended periods of time.” SAC ¶ 55. Second, they allege that the District

“fail[ed] to implement and enforce internet safety policies to prevent sexual exploitation

of students.” Id. ¶ 64. Third, Plaintiffs allege that the District failed to “train and

supervise employees with regard to how to identify and address sexual abuse of children,

particularly the most vulnerable children, such as special-needs children and children

unable to grasp and/or verbalize the nature of their abuse.” Id.5

5 The SAC additionally alleges that the District “denied the Plaintiffs the right to

Due Process and Equal Protection of the Law by . . . [f]ailing to investigate Defendant

Henke thoroughly and properly before any allegations of sexual abuse were raised.” SAC

¶ 53(e). Neither party’s briefing addresses this allegation in relation to Plaintiffs’ § 1983

claim. Still, the Court notes that claims based on an alleged failure to investigate an

employee before hiring them “pose the greatest risk that a municipality will be held liable

for an injury that it did not cause.” Brown, 520 U.S. at 415. Thus, “courts must take even

greater care to adhere to stringent culpability and causation standards and carefully ‘test

These allegations are insufficient to state a municipal liability claim against the

District under the Equal Protection Clause. “A claim of municipal liability for sexual

harassment [under the Equal Protection Clause] requires that the state employee’s

discriminatory conduct be representative of an official policy or custom of the institution”

or “taken by an official with final policymaking authority.” Rost ex rel. K.C. v. Steamboat

Springs RE-2 Sch. Dist., 511 F.3d 1114, 1124 (10th Cir. 2008). “In the absence of an

official policy, a municipality may still be liable for the widespread and persistent

practice of sexual harassment which constitutes a custom.” Id. at 1125. However, the

Tenth Circuit has held that where a supervisor “engaged in isolated and sporadic acts of

sexual harassment directed at a few specific female members of his staff” and “[t]here is

no indication that sexual harassment by others in the office was tolerated or occurred,”

that is insufficient to establish that a municipality had a persistent and widespread

practice of sexual harassment constituting an informal custom. Starrett v. Wadley, 876

F.2d 808, 820 (10th Cir. 1989).

Here, there are no allegations that Defendant Henke’s sexual harassment and abuse

constituted a policy or custom of the District. The SAC does not allege that Defendant

the link’ between the policymaker’s hiring decision and the particular injury alleged.”

Barney, 143 F.3d at 1308 (citation omitted) (quoting Brown, 520 U.S. at 410). Here,

although Plaintiffs allege that “Defendant Henke had a history of sexually abusing

children with mental disabilities prior to being hired at Highland Park Elementary,” SAC

¶ 45, they do not allege that there was any record of this abuse that the District ignored or

neglected when hiring Defendant Henke. Thus, they have not alleged that, in light of

Defendant Henke’s record, the District knew he was highly likely to sexually abuse

students if hired as a paraprofessional or teacher’s aide.

Henke possessed final policymaking authority, nor are there any allegations suggesting

that Henke’s sexual abuse was somehow representative of an official policy of the

District. Further, the SAC does not allege that Henke abused any students at the District

other than P.J. and H.L.T., and there are no allegations that any other District employee

was sexually harassing, abusing, or exploiting students. Thus, under Starrett, Plaintiffs

have not alleged that the District had an informal custom of sexual harassment or abuse.

Accordingly, Plaintiffs have not satisfied Monell’s first element as to their claim under

the Equal Protection Clause, so they have failed to state an equal protection claim against

the District under § 1983.

However, Plaintiffs’ substantive due process claim is different in kind from their

equal protection claim. Plaintiffs advance a state-created danger theory, which “indulges

the legal fiction that an act of private violence may deprive the victim of th[e]

constitutional guarantee[s]” of the Due Process Clause. Gray v. Univ. of Colo. Hosp.

Auth., 672 F.3d 909, 927 (10th Cir. 2012). “Before the fiction may operate, however, a

state actor must create the danger or render the victim more vulnerable to the danger that

occasions the deprivation of life, liberty, or property.” Id. When assessing such a claim,

“[t]he danger that the state actor creates or enhances must be differentiated from the

harm that the private party inflicts.” 6 Id. at 927–28. Thus, while the District cannot be

6 Although the District does not challenge the issue in its Motion, see Motion at 19

n.2, the Tenth Circuit has held that this theory does not apply where a state actor is

responsible for the harm. In Gray, the court explained that “[c]ourts simply need not

indulge this legal fiction where a state actor, rather than a private individual, is directly

responsible for causing the harm.” 672 F.3d at 928. The plaintiffs in that case alleged that

hospital staff negligently caused an epileptic patient’s death because they left him

liable under the Equal Protection Clause because Plaintiffs have not alleged that the harm

P.J. and H.L.T. suffered was attributable to a District policy or custom, the District could

still be liable under a danger-creation theory for creating or enhancing the danger or

threat of abuse P.J. and H.L.T. faced. Accordingly, the Court assumes without deciding

that Plaintiffs have satisfied Monell’s first element as to their substantive due process

claim.

Turning to the second element—deliberate indifference—Plaintiffs argue they

have met this stringent standard by alleging that “the risk of being sexually abused while

at Highland Park Elementary School” was “obvious or known to the School District,

particularly when multiple students were abused.” SAC ¶¶ 66–67. According to Plaintiffs,

the District knew of this risk “regardless of whether it knew that Henke in particular was

abusing H.L.T. and P.J.” Response at 18. Plaintiffs further allege that the District “knew

that its employees would need to monitor, identify, and report suspected child abuse,”

“that training on these matters would have helped teachers and aides with the task of

spotting and addressing suspected child abuse,” and “that a failure to identify and report

such child abuse would lead to the deprivation of these students’ constitutional rights.”

unattended and he suffered a seizure. Id. at 911. Because the complaint alleged that the

hospital staff members who were “responsible for monitoring decedent were ‘employees

and/or agents’ of Defendant hospital acting ‘under color of state law,’” the Tenth Circuit

concluded that the plaintiffs failed to state a claim under a state-created danger theory

because the alleged conduct was “neither private nor violent.” Id. at 930. Here, Plaintiffs

allege that Henke was an employee of the District at the time of the abuse and that he

abused P.J. and H.L.T. at school during school hours, see SAC ¶¶ 4, 12, 16, but Plaintiffs

have not alleged federal constitutional claims against Henke under § 1983.

SAC ¶ 58; see also Response at 18. Further, Plaintiffs argue that the District had “‘actual

or constructive notice’ of Henke’s misconduct” because of the changes in P.J.’s behavior

after Henke started working in her classroom. Response at 19.

The Court is not persuaded and concludes that Plaintiffs have not sufficiently

alleged that the District was deliberately indifferent to any obvious unconstitutional

consequences of its policies and customs. The SAC does not plausibly allege that the

District had actual or constructive notice that its policies or customs were substantially

certain to result in a constitutional violation. Plaintiffs allege a pattern of tortious conduct

by alleging that Henke repeatedly sexually abused P.J. and H.L.T. See SAC ¶ 16. But

there are no allegations suggesting that the District had notice of this pattern of abuse

until Henke’s arrest. It is an inferential step too far to infer that the District knew that

Henke was abusing P.J. and H.L.T. because P.J began acting out at home and at school.

Even assuming district officials, if properly trained, “would have seen these behavioral

changes as a cry for help” and “would have properly investigated,” SAC ¶ 34 (emphasis

added), such counterfactuals are not enough to satisfy the stringent standard of deliberate

indifference.

The nature of Henke’s abuse—that he sexually abused P.J. and H.L.T. while “alone

and unsupervised with disabled students for extended periods,” SAC ¶ 26—makes it

difficult to show that the District had notice of the abuse. Plaintiffs cursorily allege that

Henke said that “his co-workers were present and witnessed ‘inappropriate

behavior . . . going on.’” Id. ¶ 35. But the SAC does not allege who these co-workers

were or what behavior they witnessed. Without more, the Court cannot conclude from

this one-line allegation that the District had notice of Henke’s abuse.

In addition, Plaintiffs have not plausibly alleged that a violation of P.J. and

H.L.T.’s right to be free from state-created danger was a highly predictable or plainly

obvious consequence of the District’s policies or customs. It is not plainly obvious that

allowing paraprofessionals to be alone with special-needs students for extended periods

of time would expose those students to danger in a manner that violates their

constitutional rights. Nor is such exposure to state-created danger a highly predictable

consequence of the District’s allegedly inadequate internet safety policies or its alleged

failure to train employees on how to identify signs of child sexual abuse. These allegedly

deficient policies and customs may show that the District neglected the safety of its

students, but deliberate indifference is a substantially higher bar than negligence. The

SAC does not allege that the District knew of and disregarded an obvious risk that its

students’ constitutional rights would be violated, so Plaintiffs have not plausibly alleged

that the District acted with deliberate indifference.

Moreover, the SAC does not sufficiently allege the third element of a Monell

claim, causation. Plaintiffs have not alleged that, through its deliberate conduct, the

District was the moving force behind P.J. and H.L.T.’s injuries. The District’s alleged

custom of allowing paraprofessionals to spend extended amounts of unsupervised time

with disabled students may well be “in harmony” with the harm P.J. and H.L.T. suffered.

See Lee v. Poudre Sch. Dist. R-1, 135 F.4th 924, 935 (10th Cir. 2025). Similarly, an

inadequate internet safety policy and insufficient training on how to identify child sexual

abuse could plausibly contribute to such harm. But under the Tenth Circuit’s “rigorous

causation standard,” id., such allegations are not enough to establish a direct causal link

between the District’s customs and policies and the constitutional deprivation P.J. and

H.L.T. allegedly suffered. Without plausible allegations of direct causation, Plaintiffs’

municipal liability claim must fail.

In short, Plaintiffs have not plausibly alleged that Defendant Henke’s abuse was

representative of an official policy or custom, so they have not stated a Monell claim

against the District under the Equal Protection Clause of the Fourteenth Amendment.

Further, Plaintiffs have not sufficiently alleged that the District was deliberately

indifferent to any obvious unconstitutional consequences of its policies or customs, nor

have they alleged that the District’s affirmative conduct was the moving force behind P.J.

and H.L.T.’s injuries. Thus, they also have not stated a claim under the Due Process

Clause of the Fourteenth Amendment. Plaintiffs have therefore failed to state a municipal

liability claim against the District under the Fourteenth Amendment, so the Court

dismisses Plaintiffs’ § 1983 claim without prejudice.

C. Plaintiffs have not stated a claim under Title IX.

Plaintiffs have sued the District under Title IX, alleging that the District’s “failure

to promptly and appropriately respond to the sexual misconduct resulted in H.L.T. and

P.J., on the basis of their sex, being excluded from participation in, being denied the

benefit of, and/or being subjected to discrimination” in the District’s education program.

SAC ¶ 82. The District moves to dismiss this claim because the SAC does not allege that

the District had actual notice that H.L.T. or P.J. were being sexually harassed or abused.

Motion at 22.

Under Title IX, with limited exceptions that are not applicable here, “[n]o person

in the United States shall, on the basis of sex, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under any education program or

activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). “[W]hen a teacher

sexually harasses and abuses a student,” that harassment and abuse constitute

discrimination on the basis of sex that is actionable under Title IX. Franklin v. Gwinnett

Cnty. Pub. Schs., 503 U.S. 60, 75 (1992). “Title IX is enforceable through an implied

private right of action for which money damages are available.” Murrell v. Sch. Dist. No.

1, 186 F.3d 1238, 1245–46 (10th Cir. 1999) (citing Davis ex rel. LaShonda D. v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629, 639 (1999)). But because respondeat superior liability

“would ‘frustrate the purposes’ of Title IX,” Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 285 (1998), “a recipient of federal funds may be liable in damages under Title

IX only for its own misconduct,” Davis, 526 U.S. at 640.

Thus, to state a claim against a school district under Title IX, a plaintiff must

allege four elements. “She must allege that the district (1) had actual knowledge of, and

(2) was deliberately indifferent to (3) harassment that was so severe, pervasive and

objectively offensive that it (4) deprived the victim of access to the educational benefits

or opportunities provided by the school.” Murrell, 186 F.3d at 1246. For the first two

prongs of this analysis, a plaintiff must allege that “an official who at a minimum has

authority to address the alleged discrimination and to institute corrective measures on the

recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and

fails adequately to respond.” Gebser, 524 U.S. at 290. “The premise, in other words, is an

official decision by the recipient not to remedy the violation,” which “finds a rough

parallel in the standard of deliberate indifference” for municipal liability claims under

§ 1983. Id. at 290–91. In Gebser, the Supreme Court declined to impose liability “based

on a theory of constructive notice, i.e., where the district knew or ‘should have known’

about harassment but failed to uncover and eliminate it.” Id. at 282. The Court reasoned

that such a standard would be at odds with the “basic objective” of Title IX, which is “to

avoid diverting education funding from beneficial uses where a recipient was unaware of

discrimination in its programs and is willing to institute prompt corrective measures.” Id.

at 289. Requiring a showing of actual knowledge of discrimination and deliberate

indifference to it ensures that school districts are liable only for their own official

decisions, not for their employees’ independent actions. Id. at 290–91.

Here, Plaintiffs have not alleged that a District official with requisite control over

the situation had actual knowledge that Defendant Henke was sexually abusing H.L.T. or

P.J. The SAC’s allegations that P.J.’s behavior changed after Henke started working in her

classroom do not show that any District official had actual knowledge of the abuse.

Plaintiffs allege that “[a] person properly trained in how to address and communicate

with non-verbal students with learning disabilities would have seen these behavioral

changes as a cry for help” and “would have properly investigated,” SAC ¶ 34, but

Plaintiffs do not allege that any District official had the requisite training, observed P.J.’s

behavioral changes, and subsequently investigated. The SAC does not allege that the

District received any complaints of sexual abuse or was otherwise informed of the abuse

prior to Henke’s arrest. Without more, the allegations in the SAC do not allow the Court

to draw the reasonable inference that the District had actual knowledge of P.J. or H.L.T.’s

abuse.

Further, although the SAC alleges that Henke said “that his co-workers were

present and witnessed ‘inappropriate behavior . . . going on,’” SAC ¶ 35, the SAC does

not provide any details regarding who these co-workers were or what they saw. Thus, the

Court cannot determine from the face of the SAC whether any of these co-workers had

authority to address the abuse and institute corrective measures. If these co-workers

lacked such authority, the SAC does not allege that they notified an official who had

authority to address the abuse.

Absent any plausible allegations that the District had actual notice of P.J. and

H.L.T.’s abuse, Plaintiffs’ Title IX claim must fail. Accordingly, the Court grants the

District’s motion to dismiss Plaintiffs’ Title IX claim, which is dismissed without

prejudice.7

7 In their Response, Plaintiffs state that they “should be given the opportunity to

amend their Complaint to cure any deficiency.” Response at 30. But a plaintiff cannot

seek leave to amend a complaint in a response brief. See Fed. R. Civ. P. 7(b)(1) (“A

request for a court order must be made by motion.”); LCvR7.1(c) (“A response to a

motion may not also include a motion . . . made by the responding party.”); LCvR15.1

(explaining that a party moving to amend a pleading must attach the proposed pleading as

an exhibit to the motion); see also Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 771

F.3d 697, 706 (10th Cir. 2014) (“We have recognized the importance of Fed. R. Civ. P.

7(b) and have held that normally a court need not grant leave to amend when a party fails

to file a formal motion.” (quoting Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181

F.3d 1180, 1186 (10th Cir. 1999))). Moreover, Plaintiffs have already been given the

D. The Court declines to exercise supplemental jurisdiction over

Plaintiffs’ remaining state-law claims.

Plaintiffs’ remaining claims against the District and Defendant Henke all arise

under state law for negligence and intentional torts. As Plaintiffs explain, their

“negligence claims are pled in the alternative to Plaintiffs’ federal claims. In other words:

either the District knew (had notice of) Henke’s abuse and did nothing, in which case

District was deliberately indifferent; or the District should have known but did not, in

which case District was negligent.” Response at 29 n.10 (citing Fed. R. Civ. P. 8(d)(2)–

(3)).

The District argues for dismissal of these claims in part because Plaintiffs have

failed to state a claim and in part because they have failed to comply with the GTCA.

Specifically, regarding the District’s GTCA arguments, the District asserts that Plaintiffs

have not alleged compliance with the GTCA’s notice requirement, Plaintiff Jenkins has

altogether failed to comply with the notice requirement, and even if these claims “survive

the GTCA notice deficiencies, District is still immune from liability arising from

discretionary functions.” Motion at 10–13, 22–25.8

“When a federal district court has original jurisdiction over a civil cause of

action, [28 U.S.C.] § 1367 determines whether it may exercise supplemental jurisdiction

opportunity to amend their complaint twice following motions to dismiss. See [Doc. Nos.

3, 11, 15, 22, 32, 33, 34].

8 The District also contends it cannot be liable for Defendant Henke’s intentional

torts, see Motion at 29, but Plaintiffs are not bringing the intentional tort claims against

the District, see Response at 30.

over other claims that do not independently come within its jurisdiction, but that form

part of the same Article III ‘case or controversy.’” Jinks v. Richland Cnty., 538 U.S. 456,

458 (2003). Section 1367(a) provides:

Except as provided in subsections (b) and (c) or as expressly provided

otherwise by Federal statute, in any civil action of which the district courts

have original jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in the action

within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a).

But simply because a district court may exercise supplemental jurisdiction does

not mean that it should. Indeed, § 1367(c) “describe[s] situations in which a federal court

may or must decline to exercise supplemental jurisdiction.” Jinks, 538 U.S. at 459.

Specifically, § 1367(c) states:

The district courts may decline to exercise supplemental jurisdiction over a

claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

28 U.S.C. § 1367(c).

In any of these situations, “federal law is not where the real action is.” Royal

Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 32 (2025). “So although supplemental

jurisdiction persists, the district court need not exercise it: Instead, the court may (and

indeed, ordinarily should) kick the case to state court.” Id.; see also Barnett v. Hall, Estill,

Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir. 2020)

(explaining that “[t]he Supreme Court has encouraged the practice of dismissing state

claims or remanding them to state court when the federal claims to which they are

supplemental have dropped out before trial,” and the Tenth Circuit “has followed suit”).

“[A] district court’s deferral to a state court rather than retaining and disposing of state

law claims itself” promotes principles of “judicial economy, fairness, convenience and

comity.” Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995).

However, while declining to exercise supplemental jurisdiction is the preferred

practice, “compelling reasons to the contrary” may suggest that a federal court should

exercise its “discretion to try state claims in the absence of any triable federal claims.”

Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990). Courts

should exercise this discretion if, “given the nature and extent of pretrial proceedings,

judicial economy, convenience, and fairness would be served by retaining jurisdiction.”

Id.

Upon careful consideration, the Court declines to exercise supplemental

jurisdiction over Plaintiffs’ state-law claims under § 1367(c). The Court has dismissed

both federal claims over which it has original jurisdiction. There are no unique,

compelling circumstances that would lead the Court to try Plaintiffs’ state claims in the

absence of any federal claims. Many of the District’s arguments for dismissal turn on

application of the GTCA, and Oklahoma’s courts are best poised to interpret and apply a

statute controlling the scope and extent of the state’s waiver of sovereign immunity. See

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless decisions of

state law should be avoided both as a matter of comity and to promote justice between the

parties, by procuring for them a surer-footed reading of applicable law.”). The Court is

reluctant to engage in unnecessary determinations of state law when it otherwise has no

original jurisdiction, especially when such determinations involve the scope of the state’s

waiver of governmental immunity. See 28 U.S.C. § 1367(c)(1), (c)(3).

Because this case was removed from state court, the Court may “relinquish

jurisdiction over the case” either by dismissing the state-law claims without prejudice or

remanding the case to state court. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351

(1988). Remand rather than dismissal is the favored path when it “will best accommodate

the values of economy, convenience, fairness, and comity.” Id. “Any time a district court

dismisses, rather than remands, a removed case involving pendent claims, the parties will

have to refile their papers in state court, at some expense of time and money,” and “the

state court will have to reprocess the case,” which “will involve similar costs.” Id. at 353.

Thus, dismissing state-law claims instead of remanding them will often “increase both

the expense and the time involved in enforcing state law.” Id.; see also 13D Wright &

Miller’s Federal Practice & Procedure § 3567.3 (3d ed. 2025) (“[I]n a case removed

from state to federal court, the federal judge who declines supplemental jurisdiction

under § 1367(c) should remand the supplemental claims to state court . . . .”).

Under the circumstances of this case, the Court concludes that an order of remand

rather than dismissal best promotes the values of economy, convenience, fairness, and

comity. Accordingly, Plaintiffs’ state-law claims against the District and Defendant Henke

will be remanded to the state court from which they were removed, which is the District

Court of Oklahoma County, State of Oklahoma.

IV. CONCLUSION

For these reasons, the Court GRANTS IN PART the District’s Motion to Dismiss

Plaintiffs’ Second Amended Complaint [Doc. No. 48]. The Court DISMISSES Plaintiffs’

federal claims without prejudice. The Court declines to exercise supplemental jurisdiction

over Plaintiffs’ remaining state-law claims, which are REMANDED to the District Court

of Oklahoma County, State of Oklahoma. A separate judgment will follow.

IT IS SO ORDERED this 16th day of July 2025.

UNITED STATES DISTRICT JUDGE

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