Prather

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SHAWN PRATHER CIVIL ACTION

V. 23-1349-SDD-RLB

EAST BATON ROUGE PARISH

SCHOOL BOARD and RICHARD

DAY, individually and in his official

capacity

RULING

This matter is before the Court on a Motions for Summary Judgment filed by

Defendant Richard Day (“Day”)1 and Defendant East Baton Rouge Parish School Board

(the “School Board”),2 respectively. Plaintiff, Shawn Prather (“Plaintiff”), opposed both

Motions,3 and Day and the School Board filed Replies.4 For the following reasons, the

Court will grant Day’s motion, and it will grant the School Board’s motion as to the federal

claims but deny its motion as to the state law claims.

I. BACKGROUND5

This action arises out of sexual abuse Plaintiff endured as minor student at

Southeast Middle School (“Southeast”) in Baton Rouge, Louisiana in May of 1985. At that

time, Plaintiff was in seventh grade, Rafe Davison (“Davison”) was a science teacher, and

Day was the principal of Southeast.6 Plaintiff’s initial interactions with Davison were limited

1 Rec. Doc. 65.

2 Rec. Doc. 66.

3 Rec. Docs. 70, 71.

4 Rec. Docs. 73, 74.

5 To avoid confusion, when citing deposition testimony, the Court will refer to the page number of the

deposition transcript, not the ECF number assigned by CM/ECF.

6 Rec. Doc. 1.

to casual greetings like “Good morning,” and “how are you doing.”7 Plaintiff testified that,

back then, he never felt uncomfortable in Davison’s presence and had never heard of

Davison engaging inappropriately with students.8

The first time Davison abused Plaintiff was on May 14, 1985 during Plaintiff’s

seventh period gym class.9 After leaving gym class to use the restroom, Plaintiff was

called into Davison’s classroom and then sexually assaulted by Davison.10 Specifically,

Plaintiff testified that once Davison had him alone in his classroom, Davison closed the

door and grabbed Plaintiff, placed him in a “bear hug” and then pushed him up against

the back of the door of the classroom. Davison lifted him up such that his feet were not

touching the ground. Davison proceeded to forcefully kiss Plaintiff, and then he lowered

Plaintiff down, grabbed his face, and pushed his cheeks to a position requiring Plaintiff to

open his mouth. Davison then started French kissing Plaintiff and told him that was the

way people showed they love each other. Davison then stopped kissing Plaintiff and with

one hand covering Plaintiff’s collarbone and throat area, he removed Plaintiff’s underwear

with his other hand. Davison proceeded to perform oral sex on Plaintiff.11 Following this

assault, Davison provided Plaintiff with a hall pass to return to P.E. class.12

Larry Stallings (“Stallings”), another student, briefly entered Davison’s classroom

while this assault occurred, and Davison angrily asked Stallings for a hall pass and

ordered Stallings to return to class when he could not present one.13 Plaintiff later

disclosed part of the assault to Stallings and then Plaintiff’s mother, who contacted the

7 Rec. Doc. 65-2, Plaintiff Depo, p. 90.

8 Id. at pp. 90, 93.

9 Id. at p. 93.

10 Id. at p. 94-96.

11 Id. at pp. 95-96.

12 Id. at pp. 96, 101.

13 Id. at pp. 94-95.

police.14 Detectives arrived at Plaintiff’s home that evening and questioned him about the

incident.15 However, Plaintiff only told them that Davison forcefully hugged and French

kissed him; he did not report the oral sex.16

A Police Report was prepared by the detectives.17 Although the Police Report is

dated May 20, 1985, it also makes clear that the date of the incident was May 14, 1985,

and it reflects that the police began their investigation by taking Plaintiff’s statement in his

home the night of the incident.18 Although the Police Report is redacted where the minor

children were identified – Plaintiff and Stallings – it is easily inferred that the detectives

left Plaintiff’s home and “proceeded” to interview Stallings in the presence of his mother

on May 14, 1985, the date of the incident.19 The report indicates that, following Stalling’s

interview, the police “proceeded to obtain more information” about Davison and “then

proceeded to contact Mr. Richard Day, Principal of Southeast Middle School to advise

him of the above investigation.”20 However, since Day was not home, the detectives

“contacted” Day “early the next day” and advised him of the investigation.21 Plaintiff

contends the report demonstrates that Day was notified of the investigation “the next day”

after the incident – May 15, 1985.22 Day maintains the actual dates of interviews are not

specified, and, because the report references many different dates, it cannot be

conclusively determined that Day was contacted by the detectives on May 15, 1985.23

14 Id. at pp. 97-98.

15 Id. at pp. 98-99.

16 Id. at pp. 98-99; Rec. Doc. 65-3, p. 4.

17 The Court notes that the Police Report is virtually the only available contemporaneous evidence of the

events. Although it is hearsay, all parties have relied on it, without objection, as substantive evidence.

18 Rec. Doc. 65-3.

19 Id. at p 5.

20 Id. at pp. 5-6.

21 Id.

22 Rec. Doc. 71-2, p. 9.

23 Rec. Doc. 74-1, p. 4.

Day testified that when he was contacted by the detectives, he could not recall

being advised of the specifics of the complaint against Davison, just that they were

investigating a complaint against Davison and asked if Day had any knowledge of the

facts.24 Day further testified, and the Police Report reflects, that Day advised the

detectives about a meeting that occurred when Southeast first opened, 10 or 11 years

prior, which included the Assistant Superintendent of Schools Lorin Smiley (“Smiley”), the

Southeast administration, and a detective, to address parent complaints about Davison

and the “strange” comments he made to neighborhood children.25 Day was also made

aware by other teachers (who previously worked with Davison at Istrouma Junior High)

of rumors about Davison’s purported homosexuality and that “he’s got a reputation and

all that.”26

Although Day testified that the police investigating Plaintiff’s complaint never

advised him of names or specifics about the incident, Day acknowledged that he

understood the nature of the matter being investigated involved the “possibility” of

inappropriate sexual behavior with a minor.27 Day maintains that the police did not advise

him that the investigation involved a student at Southeast, but he acknowledges they

advised him it involved a child.28

When asked how Day supervised Davison over the years in light of the 1974

rumors, Day testified that, when he returned to Southeast in an administrative role, he

supervised Davison by “[j]ust seeing him and telling him, Rafe, keep it straight, don’t

24 Rec. Doc. 65-4, Day Depo, p. 155.

25 Id. at p. 154; Rec. Doc. 65-3, pp. 5-6.

26 Rec. Doc. 65-4, p. 181, 185.

27 Id. at pp. 185-186.

28 Id. at pp. 186-187.

involve yourself with any relationship with any students, you know. And that was the

same thing we told him every year basically, at least, you know, that I was aware of.”29

On May 15, 1985, Plaintiff saw Davison at school. Plaintiff waved and said good

morning. Davison called him over to the side of the classroom door and asked Plaintiff if

he had told anyone about the sexual abuse that occurred the previous day; Plaintiff said

no. Plaintiff testified that he was scared for his life. Later, Plaintiff waved goodbye to

Davison before getting on the bus at the end of the school day.30

On May 16, 1985, while Plaintiff was in Ms. Wicker’s class, Ms. Wicker advised

Plaintiff that Davison requested to see him in his classroom; Plaintiff complied and went

to Davison’s classroom. Once in the classroom, Davison closed the door, lifted Plaintiff

onto the desk, kissed him again, pushed Plaintiff’s back toward the table, and held

Plaintiff’s crotch to make him erect. Davison told Plaintiff that “he would make a lot of guys

happy with that” referring to Plaintiff’s penis. Davison held Plaintiff’s chest down and said

he had a new way to make Plaintiff feel better, then he pulled Plaintiff’s pants down and

began performing oral sex on him while using his fingers to rub Plaintiff’s anus. Davison

spit on his fingers and inserted one into Plaintiff’s anus, then alternated between sucking

his fingers and sucking Plaintiff’s penis. Davison continued to digitally rape Plaintiff,

inserting two fingers and pushing higher up against Plaintiff’s prostate, causing damage

that made Plaintiff begin to bleed. At that point, Davison stopped.31

On May 20, 1985, when Plaintiff arrived at school, Davison pulled him aside and

asked about his weekend. Plaintiff told Davison he spent the weekend drawing in his

29 Id. at p. 125.

30 Rec. Doc. 65-2, pp. 104-105.

31 Rec. Doc. 65-2, pp. 107-110.

room, and Davison said he wanted to see the drawings, which Plaintiff kept at home in a

large sketchbook. Davison told Plaintiff that he could bring Plaintiff home to his apartment,

which alarmed Plaintiff because he could not understand how Davison knew he lived in

an apartment. Davison then asked if Plaintiff had told anyone about the abuse, to which

Plaintiff said no.32

On May 21, 1985, Plaintiff testified that Ms. Wicker again told him that Davison

needed to see him in his classroom. Plaintiff went to Davison’s classroom, and he was

sexually assaulted again. Davison placed Plaintiff on the table and raped him in the same

manner as before. However, this time, Plaintiff bled profusely and asked Davison to

please stop. Plaintiff testified that during this assault, he thought – “Why doesn’t anyone

believe me? Why hasn’t anyone stopped him from doing this to me?”33

On the morning of May 22, 1985, Plaintiff and Davison had a similar “good

morning” type of verbal interaction as on May 20. This was the last interaction between

them.34

According to the Police Report, on May 23, 1985, “[u]pon arriving at Southeast

Middle School, this detective proceeded to the Administrative Office and contacted Mr.

Richard Day, Principal. Mr. Day was fully informed of the above investigation and of the

need to talk with Mr. Rafe Davison. Mr. Day was fully cooperative in obtaining a substitute

teacher for the time Mr. Davison would be interviewed.”35 During the interview, Davison

initially denied the accusations; however, upon being confronted with the handwritten note

excusing Plaintiff from class, Davison admitted that on May 14, 1985, he kissed Plaintiff

32 Id. at pp. 116-117.

33 Id. at pp. 117-118.

34 Id. at pp. 119-120.

35 Rec. Doc. 65-3, p. 7.

on the mouth in his classroom.36 During the interview, Davison admitted to having a

personal attraction to Plaintiff, acknowledged that he had done wrong, and said that he

would like to get some “help” for his “problem.”37 Following the interview, Davison was

taken into custody by police.38

Day vividly recalled witnessing Davison admit to the allegations.39 On the day of

the arrest, after school was over, Day called a faculty meeting wherein he announced

Davison’s arrest. Following the announcement, Sharon Story, a teacher at Southeast who

had previously taught with Davison at Istrouma, approached Day and said, “It’s about

time.” A second teacher, Irene Smith, who also taught with Davison at Istrouma, made a

similar comment to Day that “[t]hey finally caught up with him” in reference to Davison.40

During his decades of employment with the School Board, Day cannot recall ever

receiving training regarding sexual abuse or suspected sexual abuse of students or

children.41 Day cannot recall ever receiving information relating to rules or regulations

regarding sexual relationships with students.42 Day could not recall whether the School

Board employee handbook he received during the relevant time period mentioned sexual

abuse.43 Day could not recall any School Board policy regarding reporting or investigating

suspicions of child sexual abuse.44

When Day left teaching and began administrative roles with the School Board, he

36 Id. at pp. 7-8.

37 Id. at p. 8.

38 Id.

39 Rec. Doc. 65-4, pp. 165-167.

40 Id. at pp. 170-171.

41 Rec. Doc. 65-4, p. 91; Rec. Doc. 71-1, pp. 308-316.

42 Rec. Doc. 65-4, pp. 43-44; Rec. Doc. 71-1, pp. 308-316.

43 Rec. Doc. 65-4, p. 91; Rec. Doc. 71-1, pp. 308-316.

44 Rec. Doc. 65-4, p. 122; Rec. Doc. 71-1, pp. 308-316.

received no additional training.45 Day acknowledged that he was given a test in 1967 or

1968 to become an administrator, but the subject matter of the test had nothing to do with

administrative responsibilities.46

Gwynn Shamlin (“Shamlin”), current General Counsel for the School Board,

appeared for a Rule 30(b)(6) deposition on behalf of the School Board.47 When Shamlin

was originally hired by the School Board as a teacher, he did not recall receiving any

training relating to investigation into sexual abuse of students.48

Plaintiff cites Shamlin’s general testimony, arguing that the following facts are

“undisputed.”49 According to the School Board, what Davison did to Plaintiff should not

have happened.50 The School Board had a responsibility to protect Plaintiff from sexual

abuse by his teacher.51 All students have a right to be free from sexual abuse by their

teachers and that was true in 1985.52 Since before 1985, the School Board had the

responsibility to investigate suspicions of child sexual abuse by its teachers.53 Further,

the School Board had a responsibility not to retain an employee who poses a potential

danger to the students in their care.54 By at least 1974, when it learns that a School

System is being investigated by law enforcement, the School Board should ask questions

of law enforcement to determine how to protect its students.55 The School Board also has

45 Rec. Doc. 65-4, pp. 62, 82, 88-89; Rec. Doc. 71-1, pp. 308-316.

46 Rec. Doc. 65-4, pp. 29-31; Rec. Doc. 71-1, pp. 308-316.

47 Rec. Doc. 71-1, Shamlin Depo.

48 Rec. Doc. 71-1, p. 25.

49 Many of the following statements are more appropriately characterized as arguments and/or opinions

rather than established facts, but the Court will interpret them in the light most favorable to Plaintiff.

50 Id. at p. 56.

51 Id. at pp. 56-57.

52 Id. at p. 57.

53 Id.

54 Id. at pp. 57-58.

55 Id. at pp. 60-61.

a duty to supervise an employee about whom it has information concerning that

employee’s inappropriate sexual conduct with children, at a minimum.56

If law enforcement goes to a school and informs the principal that they suspect a

teacher at the school is having inappropriate sexual contact with children, not necessarily

a student, that it is a serious situation that the principal should bring to the School Board

superintendent.57 Even rumors that a teacher is having inappropriate sexual contact with

children, whether students or not, should be brought to the superintendent’s attention.58

If advised by law enforcement that a teacher is suspected of engaging in inappropriate

sexual contact with children, the principal should advise the teacher being investigated

and devise a plan that would deter this behavior.59 If law enforcement goes to a school

and advises the principal that they are investigating a teacher’s inappropriate sexual

conduct with a child, it is reasonable for the principal to assume it is about a student.60

The School Board denies that the above statements from Shamlin’s testimony are

undisputed:

Plaintiff’s statement[s] [are] elicited from testimony of Mr. Shamlin, which

reflects a combination of personal opinion and his understanding as

General Counsel, rather than firsthand knowledge of events in 1985. He

expressly testified that he cannot speak to what policies were in place at

that point. He was not a representative of the School Board at the time of

the alleged incidents and therefore cannot provide competent evidence of

what the School Board believed or maintained in 1985. Any testimony

regarding students’ rights or the responsibilities of the School Board in 1985

reflects the witness’s present-day understanding, not personal knowledge

of the School Board’s policies and practices at that time.61

56 Id. at p. 61.

57 Id. at p. 229.

58 Id.

59 Id. at p. 231.

60 Id. at p. 232.

61 Rec. Doc. 74-1, p. 10 (citing Rec. Doc. 71-1, pp. 11, 31). The cited pages of Shamlin’s testimony do not

support the statements offered by the School Board; however, Shamlin did testify generally throughout his

deposition that he had no knowledge of School Board policy in 1985, and he could not speak for the School

Today, the School Board has policies in place to protect students from potential

sexual abuse, including a policy that no School Board employee should be alone with a

student in a classroom or other enclosed area on school property unless an authorized

adult is present during the full time of the interaction, or the student and the employee are

clearly visible by persons outside of the area through either an open door or entrance or

through a window or other means that provides an unobstructed view of the student and

that employee.62 Plaintiff takes the position, based on Shamlin’s testimony, that there is

no reason this policy could not have been implemented back in 1985.63 However, the

School Board contends that this testimony “reflects a combination of personal opinion

and his current understanding as General Counsel, rather than firsthand knowledge of

events in 1985.” Further, Shamlin “expressly testified that he cannot speak to what

policies were in place at that point. He was not a representative of the School Board at

the time of the alleged incidents and therefore cannot provide competent evidence of

what the School Board should have done or its contemporaneous views regarding what

policies should have been in place.”64

Plaintiff offers as an undisputed fact that the School Board was aware of four prior

incidents of sexual misconduct with minors by School Board employees between 1980

and 1985.65 However, the School Board responds that its “acknowledgment of four prior

incidents of alleged sexual misconduct by employees between 1980 and 1985 reflects its

Board’s policy decisions and actions back then. See Rec. Doc. 71-1, pp. 50-53, 62, 64-65, 67, 91-93, 106,

117, 138, 144-150, 158, 166, 169-172, 175, 207, 210-214, 217, 218, 228, 238, 245.

62 Rec. Doc. 71-1, p. 216.

63 Id. at p. 218

64 Rec. Doc. 74-1, p. 17. The actual policies in place in 1985 appear to be unavailable.

65 Rec. Doc. 71-2, p. 18.

current awareness, after Plaintiff produced newspaper articles regarding these

allegations. Such post-litigation awareness does not establish that the allegations were

substantiated, nor does it demonstrate that the School Board had actual notice of these

incidents prior to the subject events.”66 The School Board objects to this evidence, arguing

that the news articles are hearsay and inadmissible summary judgment evidence. The

School Board is correct. The Fifth Circuit has ruled that “[n]ewspaper articles, however,

are not proper summary judgment evidence to prove the truth of the facts that they report

because they are inadmissible hearsay.”67 Accordingly, the Court will not consider facts

offered by Plaintiff that are supported only by inadmissible news articles.

II. LAW & ANALYSIS

A. Rule 56 Summary Judgment Standard

In reviewing a party’s motion for summary judgment, the Court will grant the motion

if (1) there is no genuine issue of material fact, and (2) the mover is entitled to judgment

as a matter of law.68 This determination is made “in the light most favorable to the

opposing party.”69 A party moving for summary judgment “‘must “demonstrate the

absence of a genuine issue of material fact,” but need not negate the elements of the

nonmovant’s case.’”70 If the moving party satisfies its burden, “the non-moving party must

show that summary judgment is inappropriate by setting ‘forth specific facts showing the

66 Rec. Doc. 74-1, p. 19.

67 James v. Texas Collin Cty, 535 F.3d 365, 374 (5th Cir. 2008).

68 FED. R. CIV. P. 56(a).

69 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.

654, 655 (1962); 6 V. MOORE, FEDERAL PRACTICE 56.15(3) (2d ed. 1966)).

70 Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003) (quoting Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)); Celotex Corp. v. Catrett, 477 U.S. 317,

323-25 (1986).

existence of a genuine issue concerning every essential component of its case.’”71

However, the non-moving party’s burden “‘is not satisfied with some metaphysical doubt

as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by

only a scintilla of evidence.’”72

Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”73 All reasonable factual

inferences are drawn in favor of the nonmoving party.74 However, “[t]he Court has no duty

to search the record for material fact issues. Rather, the party opposing the summary

judgment is required to identify specific evidence in the record and to articulate precisely

how this evidence supports his claim.”75 “Conclusory allegations unsupported by specific

facts . . . will not prevent the award of summary judgment; ‘the plaintiffs [can]not rest on

his allegations . . . to get to a jury without any “significant probative evidence tending to

support the complaint.”’”76

B. Principal Day’s Motion for Summary Judgment Under 42 U.S.C. § 1983

The Civil Rights Act of 1964, 42 U.S.C. § 1983, creates a private right of action for

redressing the violation of federal law by those acting under color of state law.77 It

provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State ... subjects, or causes to be subjected, any

71 Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (quoting Morris v. Covan World

Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).

72 Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little, 37 F.3d at 1075).

73 Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

74 Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

75 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

76 Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994)

(quoting Anderson, 477 U.S. at 249).

77 See Migra v. Warren City School District Board of Educ., 465 U.S. 75, 82 (1984); Middlesex County

Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19 (1981).

citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured....78

“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method

for vindicating federal rights conferred elsewhere.’”79 To prevail on a § 1983 claim, a

plaintiff must prove that a person acting under the color of state law deprived him of a

right secured by the Constitution or laws of the United States.80

Plaintiff asserts a claim against Day in his individual capacity, arguing that he is

liable for Davison’s violating Plaintiff’s Fourteenth Amendment rights via supervisory

actions or omissions, including failure to investigate, train, or supervise. Day asserts the

defense of qualified immunity in response to Plaintiff’s claims against him pursuant to 42

U.S.C. § 1983.81 Public officials are entitled to qualified immunity unless the plaintiff

demonstrates that (1) the defendant violated an actual constitutional or federal statutory

right that is clearly established under existing law, and (2) if so, that the defendant's

conduct was objectively unreasonable in light of clearly established law at the time of that

conduct.82 If the court determines that there was a violation of a right secured by the

Constitution, then it must determine whether the defendant could have reasonably

thought his actions were consistent with the rights they are alleged to have violated.83

78 42 U.S.C. § 1983.

79 Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, (1979));

accord Graham v. Connor, 490 U.S. 386, 393–94 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808,

816 (1985); Jackson v. City of Atlanta, TX, 73 F.3d 60, 63 (5th Cir.), cert. denied, 519 U.S. 818 (1996);

Young v. City of Killeen, 775 F.2d 1349, 1352 (5th Cir.1985).

80 See Blessing v. Freestone, 520 U.S. 329, 340 (1997); Daniels v. Williams, 474 U.S. 327, 330 (1986);

Augustine v. Doe, 740 F.2d 322, 324–25 (5th Cir.1984).

81 Haley v. DeSoto Par. Sch. Bd., CV 20-0476, 2021 WL 261273, at *5 (W.D. La. Jan. 26, 2021) (“[Qualified

immunity and statutory immunity are not synonymous. A party must meet the requirements of each

individual immunity in order to enjoy its protection.”).

82 Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011); Hart v. Tex. Dep't of Criminal Justice, 106 F. App'x

244, 248 (5th Cir. 2004).

83 Anderson v. Creighton, 483 U.S. 635, 638 (1987).

The protections afforded by the qualified immunity defense turn on the “objective legal

reasonableness” of the defendant's conduct examined by reference to clearly established

law.84

The Fifth Circuit has “held as early as 1981 that ‘[t]he right to be free of state-

occasioned damage to a person's bodily integrity is protected by the fourteenth

amendment guarantee of due process.’”85 Although a school official cannot be held

vicariously liable for the acts of a subordinate under § 1983, the school official’s liability

can arise when it is shown that their action or inaction demonstrates a deliberate

indifference to a student’s constitutional rights.86

The Fifth Circuit adopted the following test to determine the personal liability of

school officials in cases involving a subordinate’s sexual abuse of a minor student:

A supervisory school official can be held personally liable for a subordinate's

violation of an elementary or secondary school student's constitutional right

to bodily integrity in physical sexual abuse cases if the plaintiff establishes

that:

(1) the defendant learned of facts or a pattern of inappropriate sexual

behavior by a subordinate pointing plainly toward the conclusion that

the subordinate was sexually abusing the student; and

(2) the defendant demonstrated deliberate indifference toward the

constitutional rights of the student by failing to take action that was

obviously necessary to prevent or stop the abuse; and

(3) such failure caused a constitutional injury to the student.87

84 Id. at 639.

85 Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450–51 (5th Cir.1994). The Fifth Circuit also found that it

was clearly established in 1985 that the Due Process Clause protects a schoolchild from being lashed to a

chair for “instructional purposes” and that similar egregious and outrageous conduct, such as sexually

molesting a minor student, could not be assumed to be met with constitutional immunity. Additionally, a

school official could not have reasonably believed that he could be deliberately indifferent to subordinate's

violation of a constitutional rights in this manner and escape liability under § 1983. Id. at 450–56.

86 Id.; See Monell, 436 U.S. at 691.

87 Evans v. St. Bernard Par. Sch. Bd., 03-379, 2004 WL 737493, at *3 (E.D. La. Apr. 5, 2004) (citing Hagan

v. Houston Indep. Sch. Dist., 51 F.3d 48 (5th Cir.1995)).

Day moves for summary judgment, arguing he is entitled to qualified immunity

because there is no competent summary judgment evidence that he learned of facts

pointing plainly towards the risk of sexual abuse by Davison. Day notes that the assaults

on Plaintiff by Davison occurred on May 15, May 16, and May 21, 1985, and Day had no

actual knowledge or reason to suspect that Davison had engaged in similar conduct prior

to May 23, 1985. Day contends the rumors going around in 1974 had only to do with

Davison’s sexuality and not that he was sexually abusing children.88 Day testified that,

when he asked Assistant Superintendent Smiley if there had been any incidents involving

Davison at school, Smiley responded, “[t]here’s no known incidents or anything that

happened.”89 Day points to Plaintiff’s testimony that even he had never experienced

uncomfortable or upsetting interactions with Davison prior to the initial assault, and he

had never heard of Davison engaging in inappropriate behavior with any other students.90

Despite no concrete allegations suggesting misconduct by Davison, Day contends

that over the next several years, he periodically checked in with Davison to ask if he was

having any issues, and he was never advised of any problems.91 Further, during this time

span, Day never received a single complaint about Davison from students, parents, or

staff.92 When Day returned to Southeast in 1984, he asked another administrator, Joe

Maggio, whether there was anything he needed to know about Davison, to which Maggio

responded, “everything is going smoothly.”93 Thus, Day argues the summary judgment

record reveals no evidence available to Day prior to May 14, 1985 that pointed plainly to

88 Rec. Doc. 65-4, pp. 126-128.

89 Id.

90 Rec. Doc. 65-2, pp. 90, 93.

91 Rec. Doc. 65-4, p. 128.

92 Id.

93 Id.

Davison as a risk of sexual abuse.

Day maintains that, even when the police contacted him after the first report of

abuse in May 1985, he was not apprised by the detectives that the reported misconduct

was sexual in nature. Day testified the detectives stated only that they were “looking into

a matter,” and they “did not specifically tell [him] that it involved a student of [his].”94 Day

claims it was not until May 23, 1985 that he “was fully informed of the above investigation

and of the need to talk with Mr. Rafe Davison.”95 Day insists the Police Report does not

establish that he learned of facts pointing plainly to the sexual abuse of Plaintiff or any

other student prior to May 23, 1985.

Plaintiff opposes Day’s motion, arguing that, even setting aside the rumors about

Davison from 1974, Day knew early on May 15, 1984, when the detectives questioned

him about Plaintiff’s initial report against Davison, that Davison was being investigated for

“the very sexually inappropriate conduct with children that had concerned him and the

School Board since 1974.”96 Plaintiff claims the fact that Day did nothing in response to

this notice demonstrates deliberate indifference to a known risk and resulted in two further

violations of Plaintiff’s bodily integrity. Plaintiff rejects the notion that, because the

detectives did not provide Day names or specify that the child involved in the investigation

was a Southeast student, Day had no responsibility to increase his supervision of Davison

and take steps to protect his students.

Plaintiff argues that Day had knowledge of Davison’s questionable conduct with

children back in 1974, not just from rumors, but from law enforcement’s contact with the

94 Rec. Doc. 65-4, pp. 155, 183, 185-186,

95 Rec. Doc. 65-3.

96 Rec. Doc. 71, pp. 14-15.

School Board and also on May 15, 1985, when law enforcement contacted Day about

Plaintiff’s report. Day knew that the 1985 investigation involved Davison’s conduct with

a child. Plaintiff contends the detectives provided Day enough information in May 1985

for Day to draw the inference that the crimes being investigated were sexual in nature,

even if that was not specifically communicated. Day’s testimony confirms this.97 Thus,

because Day was aware of facts from which the inference could be drawn that a

substantial risk of serious harm existed, and he drew the inference, the Court can infer

that the substantial risk of serious harm was obvious.98

Plaintiff also refers to the Police Report, which reflects that Day advised the

detectives in May 1985 about the 1974 school board meeting regarding Davison’s

conduct. The Police Report reads:

Day advised this detective that approximately 10 to 11 years ago

when Southeast Middle School was opened, a meeting was held with a

detective, along with the Assistant Superintendent of Schools and also

Southeast Middle School Administrators. The purpose of that meeting was

to discuss happenings in the neighborhood and complaints from parents,

also in the neighborhood, on a teacher by the name of Rafe N. Davison.

Mr. Day advised that he did not remember the extent of their

conversation, but did state that Mr. Davison’s name has come up before in

these related type incidents, either from his subdivision, where Mr. Davison

lives or from students around school, saying that Mr. Davison makes

strange comments to different students.99

Plaintiff points out that the Police Report does not reflect that Day advised the detective

that the 1974 meeting concerned rumors that Davison was gay; rather, Day advised the

detective that it involved Davison’s inappropriate conduct with children, which

97 Rec. Doc. 65-4, pp. 176-180, 184-188. Day assumed the nature of the investigation was possibly

sexual in nature. Id. at pp. 187-188.

98 Moreno v. McAllen Ind. Sch. Dist., No. 7:15-CV-162, 2016 WL 3198159, at *12 (S.D. Tex. June 9,

2016)(citing Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 658 (5th Cir. 1997)).

99 Rec. Doc. 65-3, pp. 5-6.

demonstrates that Day has been aware since that time of the existing risk of harm Davison

poses with children. Thus, Plaintiff maintains Day was at least aware of the serious risk

of harm posed by Davison during his meeting with the police in May 1985.

Plaintiff contends Day was deliberately indifferent to this known risk to students’

health and safety and did absolutely nothing to ameliorate this risk. After the police met

with Day in 1985, Plaintiff contends Day could have notified Davison that he was being

watched and could have advised Davison that he was to leave his classroom door open

and not to be alone with students. That Day failed to take a single precautionary measure

in light of this knowledge shows deliberate indifference.

Plaintiff distinguishes the cases Day relies on where courts found qualified

immunity was established on behalf of school principals, arguing that in those cases, the

principals actually did something with their knowledge by taking some preventative action,

giving a verbal warning or reprimand, or suspending the alleged abuser; here, Davison

did nothing at all. Plaintiff posits that, if the mere “rumors” about Davison from 1974

warranted Day to periodically “check in” with Davison and ask questions about his

conduct with students, at the very least, the notice Day received on May 15, 1985 - that

Davison was being investigated criminally due to conduct with a minor - should have

warranted some immediate response or measure to protect the students of Southeast

Middle.

Day counters that Plaintiff has mischaracterized his testimony and that the record

evidence, considered in context, demonstrates that Day never received any specific

report about Davison and misconduct with any student at Southeast, and no credible

allegations of sexual misconduct were ever plainly communicated to Day. Day contends

Plaintiff seeks to place liability on him for failing to act on conjecture that the police did

not even act on after Plaintiff’s first report. Although the police did not arrest Davison,

identify a victim, or conclude that Davison posed any threat to students after Plaintiff’s

initial report, Plaintiff demands that Day should have reacted at a higher level than the

police. Finally, Day maintains that there is no evidence that his purported inaction was

the moving force behind Plaintiff’s assault. Because Plaintiff concedes Davison’s sexual

misconduct occurred in secret, outside Day’s presence, and without any prior complaint

or report, there is no evidence that Day knew of any ongoing or imminent risk that

rendered some action “obviously necessary.”

Although the Court finds several genuine disputes of material fact are present in

this case, the Court holds that Day is entitled to qualified immunity after applying the

overwhelming jurisprudence that mandates this result. The Court will review the disputed

facts.

In the Court’s view, Day places undue emphasis on the distinction between a child

generally and one of his students in determining whether he was obliged to act. Day

seems to suggest that he only had an obligation to take some action if a Southeast student

was involved. The Court finds that a reasonable jury could draw the inference that any

misconduct with a minor child by Davison necessarily put Day on notice that Davison

posed a risk to all children, including the students under his authority. While Day argues

that earlier rumors about Davison related only to his sexuality and strange behavior with

neighborhood children not sexual in nature, there is evidence in the record from which a

reasonable jury could draw the inference that Day was on notice that Davison might pose

a risk of sexual misconduct with students.

First, although Day characterized these old complaints as rumors, they were

treated seriously enough for law enforcement to contact the School Board in 1974.

Second, the issue prompted Day to periodically ask Davison if there were any problems

over the next few years. Third, when Day returned to Southeast as principal in 1984, he

asked Maggio specifically about issues with Davison. Although Maggio reported no

problems, Day admonished Davison to “keep it straight,” and pointedly told him “don’t

involve yourself with any relationships with students.”100 Day testified they told Davison

this every year. Fourth, the 1985 Police Report reflects that, when questioned about

Plaintiff’s initial report, Day recounted the School Board meeting with the detective about

Davison back in 1974, and the Police Report characterized this as “related type incidents.”

There was no mention in the Police Report of rumors about Davison’s sexuality, only prior

complaints about his behavior with children. Even if the detectives did not explicitly state

the crime being investigated was sexual in nature, a reasonable jury could conclude that

a criminal investigation implied sexual misconduct. The jury might also conclude Day was

aware of this implication, particularly because Day warned Davison against “relationships

with students,” which carries its own suggestion of sexual misconduct with minors. Day

admitted as much during his deposition when he acknowledged that he assumed the

1985 complaint was possibly sexual in nature.101 When asked if the police told him the

reason for the investigation was a complaint of a sexual offense, Day responded, “They

never did tell me it was about a student at Southeast Middle[,] … I probably assumed that

that was what it was concerning, but they never told me like the names or whatever.”102

100 Rec. Doc. 65-4, p. 125 (emphasis added).

101 Id. at pp. 187-88.

102 Id. at p. 188.

The timing of when Day obtained knowledge of Davison’s alleged crime is also

disputed. Day maintains he did not have actual knowledge that Davison posed a risk of

sexual harm to students until May 23, 1985, the date Davison was arrested at school.

Day also claims, for notice purposes, that the reference to several dates within the Police

Report, including being dated and signed on May 20, 1985, makes it impossible to know

on what date the police actually met with Day about Plaintiff’s initial complaint. However,

the Court finds that a reasonable jury could conclude that the Police Report means what

it says: that the police attempted to contact Day on the date of the complaint, but he was

unavailable until “the next day” - May 15, 1985. This issue goes to notice and causation,

since Plaintiff argues that if Day had acted on this knowledge, the subsequent sexual

assaults of May 16 and May 21, 1985 would not have occurred. Because all parties rely

on the Police Report to support their respective positions, the Court finds that it would be

the jury’s role to interpret the Police Report.

Nevertheless, even resolving these factual disputes in the light most favorable to

Plaintiff as the Court is required to do at the summary judgment stage, the Court finds

that Plaintiff cannot escape summary judgment on the Section 1983 claims asserted

against Day based on the applicable jurisprudence on this issue. For example, in Doe v.

Rains Cnty. Indep. Sch. Dist., a principal was sued after a coach had a sexual affair with

a fifteen-year-old female student.103 The principal was aware that the student babysat for

the coach. The principal saw the coach walk the student to the bus on one occasion.

There was also evidence that the principal asked another coach whether he thought

anything was going on between the offending coach and the student. The other coach

103 76 F.3d 666 (5th Cir.1996).

said he had no idea. Later, another female student told the principal that, while he was

taping her for athletics, the coach asked her for a date. The principal also learned that the

coach had taken yet another female student out of class to tape her ankle. Finally, the

principal saw the fifteen-year-old crying at school, and after informing her parents, learned

that the student was having “trouble with a man.”104 The principal had a counselor meet

with the student, but she refused to identify the man. The Fifth Circuit held that these facts

were insufficient to point plainly toward the conclusion that the coach was sexually

abusing the student. By contrast here, even accepting Plaintiff’s version of the facts, Day

had far less knowledge regarding Davison on the morning of May 16, 1985, the day after

police met with Day regarding Plaintiff’s report.

Another example of insufficient notice is Hagan v. Houston Indep. Sch. Dist., where

the principal was informed by a teacher that a student had reported that he had been

“pinched and patted ... on the buttocks by a high school coach.105 The principal met with

the student and the coach, who explained that the touch had merely been a coaches'

gesture.”106 The principal did not inform the complaining student's parents. About one

month later, a second student reported to a teacher that he had been having sexual

relations with the coach. The teacher informed the principal, who met separately with the

second student and the coach. The second student confirmed the allegation, but the

coach again denied any wrongdoing. The following day, after being bribed by the coach,

the second student made a written statement withdrawing the allegation. Then, a few

days later, the second student revived the complaint; however, the second student's

104 Id. at 667.

105 51 F.3d 48 (5th Cir.1995).

106 Id. at 50.

mother told the principal to drop the matter because the relationship between her son and

the coach had been consensual. Next, another teacher reported to the principal that the

brother of a third student claimed that the coach and the third student were having sexual

relations. The principal met with the third student and the coach, both of whom denied the

allegation. Finally, a fourth student complained to the principal that the coach “had rubbed

his inner thigh, grabbed his penis through his pants and made a number of suggestive

comments” while he was in the coach's office. After the District Attorney brought formal

charges against the coach, he was removed.107

In finding the principal was shielded by qualified immunity, the Hagan court noted

that overcoming qualified immunity is a “difficult task” for the plaintiffs.108 The court found

that plaintiffs did not show how the principal “could have foreseen any problem” before

the first student's complaint.109 The court determined that it was not until after the third

student's complaint that the principal had notice of facts that pointed plainly to the

conclusion that the coach was engaging in sexual conduct with students.110 Nonetheless,

despite finding a sufficient basis to conclude that the school principal had “undoubtedly

learned of facts or a pattern of behavior” that would point to the conclusion that the teacher

was engaging in inappropriate sexual behavior with students,111 the Fifth Circuit ultimately

concluded that the principal's response, although ineffective, did not rise to the level of

deliberate indifference because ineffectiveness does not defeat qualified immunity.112

Here, Plaintiff attempts to distinguish Hagan, arguing that the principal there at least took

107 Id. at 50-51.

108 Id. at 52.

109 Id.

110 Id.

111 Id.

112 Id. at 52-53.

some action rather than no action, unlike Day who did nothing following notice of the risk.

While this is true, the principal in Hagan had far more information to act upon, having

received multiple reports specifically identifying the coach’s actions with multiple,

identified students. Those are not the facts of this case.

In Doe v. Beaumont I.S.D., the plaintiffs claimed the principal was deliberately

indifferent because he did not remove a teacher from his job after a prior sexual abuse

report was made against the teacher.113 A memorandum dated August 30, 1993, showed

that a student alleged that on August 27, the teacher had “looked under her dress, hugged

her, and told her that she was a fine baby.”114 The memorandum reflected that the

principal investigated the claim by holding a conference with a parent of the child and the

teacher. There, the teacher denied the allegations, and evidence existed that challenged

the child’s credibility, namely by the child’s parent, who advised that the child had been

sexually abused previously, and that experience likely informed the current sexual abuse

claim.115 In finding the principal was entitled to qualified immunity, the court stated:

The court is fully aware of the low threshold of evidence necessary to defeat

summary judgment. But a single instance is not necessarily enough to

provide actual, or even constructive, notice to the principal of an educational

institution. See, e.g., Canutillo I.S.D. v. Leija, 101 F.3d 393, 402 (5th

Cir.1996) (teacher's abusive conduct was not so pervasive that a

reasonable juror could find constructive notice, in spite of the fact that the

student and her mother had reported the abuse to a teacher). When

examining all of the evidence in the light most favorable to Plaintiffs, the

evidence shows that, as a matter of law, Traylor did not have sufficient

evidence that pointed plainly toward the conclusion that Evans was sexually

abusing his students prior to the reports of Janet and Sally Doe.116

113 8 F.Supp.2d at 612.

114 Id. at 604.

115 Id.

116 Id. at 612 (emphasis added).

In the present case, assuming the police visit to Day in May 1985 constitutes concrete

notice of the risk, it is only a single instance of purported sexual abuse by Davison, held

by the Fifth Circuit to be insufficient to prove actual or constructive notice.

Plaintiff fairly complains that, after the May 1985 meeting with the police, Day

“could have” and “should have” advised Davison that he was being watched, asked him

about fraternizing with students, and kept a more watchful eye on Davison by telling him

to keep his classroom door open or not be alone with students.117 These failures could

support that Day was negligent;118 however, the test for deliberate indifference is not

whether a principal did “all [they] could or should have done, but whether [they] failed to

take steps that were ‘obviously necessary’ under the circumstances.”119 The Fifth Circuit

instructs that “the deliberate indifference standard is a high one.”120 “Actions that are

‘merely inept, erroneous, ineffective, or negligent do not amount to deliberate

indifference.’”121 Moreover, in adopting the deliberate indifference standard over a gross

negligence standard for supervisory liability in Section 1983 cases, the Fifth Circuit

explained: “‘gross negligence’ and ‘deliberate indifference’ involve different degrees of

certainty.... Whereas the former is a ‘heightened degree of negligence,’ the latter is a

‘lesser form of intent.’”122

117 Rec. Doc. 71, p. 21.

118 The Court notes that all state law claims asserted against Day were dismissed in a prior Ruling. See

Rec. Doc. 30.

119 Henry v. Toups, No. 08-939, 2010 WL 3398857, at *10 (E.D. La. Aug. 23, 2010)(quoting Taylor Indep.

Sch. Dist., 15 F.3d 443, 454 (5th Cir.1994) (en banc ); Hagan, 51 F.3d 48, 51 (5th Cir.1995)).

120 Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir.1998).

121 Henry, 2010 WL 3398857, at *10 (quoting Doe v. Dallas Indep. Sch. Dist., 153 F.3d at 219).

122 Taylor Indep. Sch. Dist., 15 F.3d at 453, n. 7 (citing Germany v. Vance, 868 F.2d 9, 18 n. 10 (1st

Cir.1989)).

Importantly, “qualified immunity is not defeated ‘even if the harm ultimately was not

averted.’123 It is also not defeated if the supervisor's response was ‘ineffective to prevent’

the constitutional harm.”124 The Fifth Circuit declined to find deliberate indifference on the

part of a school principal even when the principal erroneously concluded that an allegation

was not true; thus, “the principal's actions were ineffective in preventing a teacher from

sexually abusing students, even though the erroneous conclusion had tragic

consequences.”125

Notably, there are cases where the Fifth Circuit has found a principal’s conduct to

rise to the level of deliberate indifference sufficient to deny qualified immunity. For

instance, in Taylor Indep. Sch. Dist., the court examined the actions of both the principal

and the superintendent. As to the principal, the court concluded that he acted with

deliberate indifference based on the following facts. The principal had heard about

problems with the coach for two years and, during that time, had only one conference

with the coach and told him not to be “too friendly” with the girls.126 When the principal

received parental complaints of favoritism in the classroom, he suggested to the parents

that their children were “jealous” of the favorite students.127 He dismissed the librarian's

report of “child molestation” she had personally observed.128 Instead of transferring the

plaintiff, the principal transferred another student who discovered an inappropriate

communication from the coach to the plaintiff, and the principal never discussed this

incident with anyone.129 He never recorded any of the substantiated complaints in the

123 Henry, 2010 WL 3398857, at *10 (quoting Farmer v. Brennan, 511 U.S. 825, 844 (1994)).

124 Id. (quoting Hagan, 51 F.3d at 52 (citation omitted)).

125 Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 388 (5th Cir. 2000).

126 15 F.3d at 456.

127 Id. at 457-457.

128 Id.

129 Id. at 457, n. 13.

coach's personnel file. He never “took the obvious step” of transferring the plaintiff out of

the coach's class or directing the coach to stay away from the plaintiff. He heard rumors

and received complaints for two years before reporting anything to the superintendent.130

Under these facts, the Fifth Circuit concluded that a jury could reasonably find that, had

the principal responded prior to the time the coach began a sexual relationship with the

student, it may not have begun at all. Further, the court also found that a reasonable jury

might not credit the principal’s testimony about his discussions with the coach based on

the coach’s failure to remember them.131 Thus, based upon this history, the Fifth Circuit

found that a reasonable jury could conclude that the principal acted with deliberate

indifference. But the history of facts known to the principal in Taylor are vastly greater

and more specific than those ostensibly known by Day here.

Considering the wealth of binding jurisprudence discussed above, and interpreting

the facts in the light most favorable to Plaintiff, the Court cannot conclude that Day was

deliberately indifferent to an obvious risk. Accordingly, Day’s Motion for Summary

Judgment is granted.

C. The School Board’s Motion for Summary Judgment

1. Federal Claims under 42 U.S.C. § 1983

“Under § 1983, a municipality or local governmental entity such as an independent

school district may be held liable only for acts for which it is actually responsible.”132 To

state a claim against a municipality under Monell v. Department of Social Services of City

of New York and its progeny, Plaintiff must plead that “(1) an official policy (2) promulgated

130 Id.

131 Id.

132 Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998) (noting that a municipality

cannot be held liable under § 1983 on a respondeat superior theory)

by the municipal policymaker (3) was the moving force behind the violation of a

constitutional right.”133

An official policy is a policy statement, ordinance, regulation, or decision that is

officially adopted and promulgated by the government entity or by an official to whom the

entity has delegated policy-making authority.134 “The ‘official policy’ requirement was

intended to distinguish acts of the municipality from acts of employees of the municipality,

and thereby make clear that municipal liability is limited to action for which the municipality

is actually responsible.”135 A municipality cannot be held liable under § 1983 for the

tortious behavior of its employees under a theory of respondeat superior.136 “Congress

did not intend municipalities to be held liable unless action pursuant to official municipal

policy of some nature caused a constitutional tort.”137 “Official municipal policies can take

various forms. They often appear as written policies, but an official policy may also be an

unwritten but ‘widespread practice that is so common and well-settled as to constitute a

custom that fairly represents municipal policy.’”138 Under this second category, a plaintiff

must show “[a]ctual or constructive knowledge of [a] custom” that is “attributable to the

governing body of the municipality or to an official to whom that body ha[s] delegated

policy-making authority.”139

Plaintiff’s federal claims against the School Board fall into two categories which

heavily overlap in evidence and argument: 1) failure to adopt a policy, and 2) failure to

133 Gomez v. Galman, 18 F.4th 769, 777 (5th Cir. 2021).

134 Doe v. Edgewood Indep. Sch. Dist., 964 F.3d at 365, n. 64 (5th Cir. 2020).

135 Id. at 365 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).

136 Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

137 Id.

138 Gomez v. Galman, 18 F.4th 769, 777 (5th Cir. 2021).

139 Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam); see also Valle v.

City of Houston, 613 F.3d 536, 542 (5th Cir. 2010).

train. In instances where the policymaker “fails to act affirmatively at all”—i.e., where there

is no policy—the “official policy” requirement may be met “if the need to take some action

to control the agents of the local governmental entity ‘is so obvious, and the inadequacy

[of existing practice] so likely to result in the violation of constitutional rights, that the

policymake[r] ... can reasonably be said to have been deliberately indifferent to the

need.’”140 “A failure to adopt a policy can be deliberately indifferent when it is obvious that

the likely consequence[ ] of not adopting a policy will be a deprivation of constitutional

rights.”141 “Deliberate indifference is a high standard—‘a showing of simple or even

heightened negligence will not suffice.’”142

Here, Plaintiff must show that the School Board had “actual or constructive notice”

that a particular omission in policy would cause its “employees to violate citizens’

constitutional rights” and that it still chose to omit that policy.143 A plaintiff may show

deliberate indifference in either of two ways. “First, a plaintiff may demonstrate ‘that a

municipality had notice of a pattern of similar violations.’”144 “Second, a plaintiff may

demonstrate liability based on a single incident if the constitutional violation was the highly

predictable consequence of a particular failure [to promulgate a policy].”145 Moreover:

“‘Moving force’ causation is more than ‘but for’ causation.”146 It requires that plaintiff show

140 Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999) (alteration in original) (quoting City

of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).

141 Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011)(quoting Rhyne v. Henderson Cnty., 973 F.2d 386, 392

(5th Cir. 1992)).

142 Valle, 613 F.3d at 542 (quoting Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001)).

143 See Porter, 659 F.3d at 447 (quoting Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179

L.Ed.2d 417 (2011)); see also Connick, 563 U.S. at 62, 131 S.Ct. 1350 (A “‘policy of inaction’ in light of

notice that its program will cause constitutional violations ‘is the functional equivalent of a decision by the

[defendant] itself to violate the Constitution.’” (citation omitted)).

144 Davidson v. City of Stafford, 848 F.3d 384, 397 (5th Cir. 2017) (quoting Kitchen v. Dall. Cnty., 759 F.3d

468, 484 (5th Cir. 2014)) (failure-to-train case).

145 Id. (internal quotation marks omitted) (quoting Kitchen, 759 F.3d at 484).

146 Doe v. Beaumont Independent School District, 727 F.Supp.3d 589, 622 (E.D. Tex. 2024)(quoting Doe,

964 F.3d at 365)).

that the final policymaker had the requisite degree of culpability—deliberate

indifference—and that the policy in question was the actual cause of the constitutional

violation.147 It is insufficient for a plaintiff to merely identify conduct that is “properly

attributable” to the municipality.148 Rather, there must be a “direct causal link.”149

“[T]here are limited circumstances in which an allegation of a ‘failure to train’ [or

failure to supervise] can be the basis for liability under § 1983.”150 To succeed on a failure-

to-train or failure-to-supervise claim, a plaintiff must show: (1) the training procedures or

supervision of employees was inadequate, (2) a causal link between such failure and the

violation of plaintiff's constitutional rights, and (3) such failure amounts to deliberate

indifference.151 “‘Deliberate indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious consequence of his action.”152

Accordingly, when a municipality's policymakers have actual or constructive notice that a

particular omission in their training program causes municipal employees to violate

citizens’ constitutional rights, the municipality may be deemed deliberately indifferent if

the policymakers choose to retain that program.153

As with inadequate policy cases, “[p]roof of more than a single instance of the lack

of training or supervision causing a violation of constitutional rights is normally required

before such lack of training or supervision constitutes deliberate indifference.”154 In the

absence of a pattern of similar violations, on rare occasions, a plaintiff may “establish

147 Id.

148 Id. (quoting Board of the County Com’rs of Bryan Cty, Okla. v. Brown, 520 U.S. 397, 404 (1997)).

149 Id. (quoting Brown, 520 U.S. at 404).

150 City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989).

151 Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009) (citation omitted).

152 Connick v. Thompson, 563 U.S. 51, 61 (2011) (brackets and citation omitted).

153 Id.

154 Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001).

deliberate indifference through the single-incident exception.”155 To fit within this

“extremely narrow” exception, the plaintiff must show “that the highly predictable

consequence of a failure to train would result in the specific injury suffered.”156 “For a

violation to be ‘highly predictable,’ the municipality ‘must have failed to train its employees

concerning a clear constitutional duty implicated in recurrent situations that a particular

employee is certain to face.’”157 “The single-incident exception ‘is generally reserved for

those cases in which the government actor was provided no training whatsoever.’”158

Similarly, to establish liability for failure to supervise, “it must have been obvious that the

highly predictable consequence of not [supervising the employees] was that they would”

commit the specific constitutional violation alleged.159

The School Board moves for summary judgment on Plaintiff’s Section 1983 claims,

arguing that Plaintiff has failed to present evidence that the violation of his rights was

caused by an official policy, practice, or custom of the School Board. The School Board

contends that the purported evidence of four instances of prior sexual abuse of students

by teachers from 1980-1985 is insufficient to establish a persistent, widespread, or so

common and well-settled custom that fairly represents municipal policy.160 The School

Board relies on Fifth Circuit jurisprudence holding that a plaintiff must show “a pattern of

abuses that transcends the error made in a single case.”161 “A pattern requires similarity

and specificity; ‘[p]rior indications cannot simply be for any and all “bad” or unwise acts,

155 Hutcheson v. Dall. Cnty., 994 F.3d 477, 482 (5th Cir. 2021).

156 Valle, 613 F.3d at 549 (emphasis omitted).

157 Hutcheson, 994 F.3d at 482-83 (quoting Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616, 624-25 (5th Cir.

2018)).

158 Id. at 483 (quoting Peña v. City of Rio Grande City, 879 F.3d 613, 624 (5th Cir. 2018)).

159 Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009)(internal quotation marks and

citation omitted).

160 Rec. Doc. 66-1, p. 14 (quoting Piotrowski, 237 F.3d at 579).

161 Peterson, 588 F.3d 838, 850-51 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at 582).

but rather must point to the specific violation in question.’”162

The School Board also argues Plaintiff has failed to present evidence of action or

inaction of a policymaker since Day’s conduct cannot be attributed to the School Board.

The School Board further maintains that Plaintiff has failed to present summary judgment

evidence that a purported policy (or lack thereof) was the “moving force” behind the

constitutional violation Plaintiff suffered. The School Board argues that the evidence in

this case shows only that Davison’s conduct was personal, unforeseeable, and in direct

contravention of School Board policy. Further, as soon as the School Board was notified

of Davison’s conduct, he was immediately arrested. Considering that deliberate

indifference is an extremely high standard, the School Board contends it was not on notice

of any excessive risk to Plaintiff’s (or other students’) health or safety. The rumors Day

heard in the past, and the limited information the police reported to Day during their

investigation of Plaintiff’s report, do not indicate an excessive risk such that it satisfies the

stringent deliberate indifference standard.

Plaintiff contends the School Board’s policy or custom was to provide no training

whatsoever regarding sexual abuse of students. Plaintiff maintains the School Board was

aware of at least four prior incidents of sexual misconduct with minors by teachers

between 1980 and 1985. Plaintiff claims the School Board “acknowledge[d]” this

awareness of two specific cases, and the problem was not general but specific to

instances of teacher-on-student sexual abuse occurring on campus and during school

hours.163 Despite this purported knowledge, Plaintiff maintains that the School Board

162 Skinner v. Ard, 519 F.Supp.3d 301, 313 (quoting Peterson, at 851) (quoting Estate of Davis ex rel.

McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).

163 Rec. Doc. 70, pp. 20-21.

failed to implement a policy or provide training to address this problem.

Plaintiff attempts to distinguish the jurisprudence regarding the number of similar

incidents required to demonstrate a pattern, arguing that the facts in those cases spoke

to a lack of similarity in the specificity of incidents and did not create a brightline test that

any specific number is too great or too little.164 Plaintiff contends that, while the single-

incident exception could apply here, he does not need to rely on it to survive summary

judgment based on the “two or four” cases between 1980-1985, and the “constructive, if

not actual, knowledge” that sexual abuse “was a problem throughout the East Baton

Rouge Parish school system.”165 Plaintiff claims that, in addition to the information the

School Board possessed since 1974 about Davison’s suspicious conduct, the “totality of

the circumstances” placed the School Board on notice of the need to implement policies

and training regarding sexual abuse of students.166

The School Board responds, arguing that Plaintiff’s only “evidence” of the School

Board’s alleged notice of these other sexual abuse incidents is based on newspaper

articles which are not competent summary judgment evidence. Accordingly, they cannot

serve as evidence of the School Board’s notice of these other allegations. Moreover, even

if the articles could be considered, they do not speak to the specifics of any system-wide

policy or training deficiencies. As for the School Board’s purported acknowledgment, the

School Board challenges Plaintiff’s characterization of this as fact since the School Board

only acknowledged its current awareness of these other incidents after the newspaper

article were produced in discovery. The School Board posits:

164 Id. at p. 21.

165 Id. at pp. 22-23.

166 Id. at p. 23.

“Awareness of allegations in litigation does not show that the allegations were

substantiated or that the School Board had prior notice of them. Plaintiff has not, and

cannot, produce any evidence showing the School Board knew of these allegations

before the subject incident.”167 That recent lawsuits have been filed also fails to establish

policy and training procedures and/or deficiencies from the 1980s because they are not

evidence showing when the alleged perpetrators “were hired, what policies governed at

that time, or what training they received.”168 And finally, even assuming all Plaintiff’s

evidence was admissible, four to five incidents spanning five years does not establish a

pattern to sustain municipal liability. While the precise size and makeup of the East Baton

Rouge Parish School System in the 1980s is unknown, it easily included hundreds of

teachers and thousands of students; four incidents of alleged sexual abuse by teachers

during a five year time span – two of which were unknown to the School Board until 2024

– does not demonstrate the type of widespread, persistent pattern required by Monell.

The School Board highlights the fact that Louisiana’s current statutory framework

governing the reporting and prevention of child abuse did not exist at the time of Plaintiff’s

assault. Additionally, the Louisiana Children’s Code, which established mandatory

reporting requirements for suspected child abuse and neglect, was not enacted until

1992.169 Notably, the specific provision that requires teachers to receive instruction on

identifying and reporting child abuse as a condition of certification was not added until

2003.170 The School Board contends that “[t]he lack of formalized state-mandated training

standards at that time underscores that the School Board’s alleged failure to train cannot,

167 Rec. Doc. 73, p. 6.

168 Id.

169 See La. Ch. C. art. 601 et seq.

170 See La. Ch. C. art. 603.1.

as a matter of law, constitute deliberate indifference.”171

The Court finds that the School Board is entitled to summary judgment on Plaintiff’s

Monell claims because Plaintiff has failed to present competent summary judgment

evidence that a widespread practice, pattern, or custom of student sexual abuse by

teachers existed within the school system at the relevant time such that the School Board

had notice of such a serious risk and the need to develop responsive policies and/or

training. Plaintiff offered four or five incidents of sexual abuse occurring between 1980

and 1985. Even setting aside admissibility issues and Plaintiff’s failure to present

evidence of the School Board’s actual knowledge of these other incidents, Plaintiff has

the burden of showing that such incidents “are ‘sufficiently numerous’ and have ‘occurred

for so long or so frequently that the course of conduct warrants the attribution to the

governing body of knowledge that the objectionable conduct is the expected, accepted

practice of [school district] employees.’”172 The incidents presented here are simply

inadequate evidence of “the persistent, often repeated, constant violations that constitute

custom and policy.”173 Further, while not dispositive, the Court finds it relevant that the

State of Louisiana lacked any statutory framework for training and reporting on these

issues during the relevant time period.174

171 Rec. Doc. 73, p. 8.

172 Robinson v. Midland County, 80 F.4th 704, 710 (5th Cir. 2023) (quoting Martinez v. Nueces County, 71

F.4th 385, 389 (5th Cir. 2023)), cert. denied, 144 S. Ct. 1010 (2024).

173 Jackson v. Valdez, 852 F. App'x 129, 135-36 (5th Cir. 2021) (concluding that six total incidents over a

period of five years were “isolated violations” insufficient to support a Monell claim (quoting Bennett, 782

F.2d at 768 n.3)); Henderson v. Killeen Indep. Sch. Dist., No. A-13-ca-471-LY, 2013 WL 6628630, at *3

(W.D. Tex. Dec. 16, 2013) (“Two isolated incidents clearly do not constitute a pattern of unconstitutional

conduct sufficient to hold [the school district] liable under § 1983.”).

174 Zarnow v. City of Wichita Falls, 614 F.3d 161, 171 (5th Cir. 2010)(Compliance with state requirements

is a factor counseling against a finding that training is inadequate.).

For the same reason, Plaintiff’s failure-to-train claim fails. For the School Board to

be liable on this claim, it must have actual or constructive notice of ongoing constitutional

violations at the school; otherwise, the Board's failure could not be a conscious or

deliberate choice.175 The failure-to-train argument fails due to the lack of competent

summary judgment evidence that the Board was aware of the incidents discussed. There

was no pattern of constitutional violations such that the Board would have been more

than grossly negligent for failing to train or supervise its employees regarding teacher on

student sexual abuse.176

There is also insufficient evidence in the record to determine whether any failure

to train was widespread. It is undisputed that Day could not recall whether he was trained

on sexual abuse issues as he proceeded through his employment with the School Board.

However, Day was hired by the School Board in 1964 to teach at Central High School.177

Day received a Master’s Degree in Education in 1968 and returned to Southeast in an

administrative role. While Day did not recall if the employee handbook he was given

contained information regarding teacher/student relationships, he testified that he did not

recall a written policy “other than the principal telling, you know, at the beginning of each

year, Make sure you don’t, you know, fraternize.”178 Day retired from the School Board in

1994.179

In his deposition, Day was asked to recall training that would have begun 61 years

ago. His promotion to administrator occurred 57 years ago. At the time this lawsuit was

175 See Porter v. Epps, 659 F.3d 440, 447 (5th Cir.2011).

176 See Estate of Davis ex res. McCully v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005).

177 Rec. Doc. 65-4, p. 22.

178 Id. at pp. 43-44.

179 Id. at p. 11.

filed, Day had been retired from the School Board for nearly 30 years. And based on

Day’s testimony, Plaintiff urges this Court that “all reasonable inferences suggest that the

other teachers working under Day, including Sharon Story, Irene Smith and Faye Wicker,

never received any training from the School Board” on sexual abuse of students.180 This

is a leap the Court cannot make. Day’s failure to recall specific training from 50-60 years

ago does not establish a widespread pattern or practice that all School Board employees

were not trained on this issue. Moreover, in DOE V. Beaumont ISD, the plaintiff survived

summary judgment against the School Board on the failure-to-train claim because the

plaintiff presented testimony of “several BISD employees that they did not receive or did

not recall receiving training that was specific to identifying and reporting teacher-student

sexual harassment and abuse and that the training they received had not changed over

time.”181 The Court has before it only Day’s testimony regarding events that occurred

several decades earlier.

Shamlin’s testimony does not establish this pattern either. Shamlin became a third-

grade teacher in East Baton Rouge Parish in 1989, then pursued other degrees including

a law degree, and returned to employment with School Board as a teacher in 1994.182 As

current General Counsel for the School Board and the designated Rule 30(b)(6)

representative, Shamlin was admittedly unaware of School Board policies and/or training

programs in existence in 1985.183 However, Shamlin generally answered several

hypothetical questions about what “could have” or “should have” been done in 1985.

180 Rec. Doc. 70, p. 13.

181 727 F.Supp.3d 589, 626.

182 Rec. Doc. 71-1, p. 25.

183 See id. at pp. 50-53, 62, 64-65, 67, 91-93, 106, 117, 138, 144-150, 158, 166, 169-172, 175, 207, 210-

214, 217, 218, 228, 238, 245

Accepting Plaintiff’s characterization of Shamlin’s testimony as true, it remains insufficient

to show deliberate indifference. As the Supreme Court has stated, “In virtually every

instance where a person has had his or her constitutional rights violated by a city

employee, a § 1983 plaintiff will be able to point to something the city ‘could have done’

to prevent the unfortunate incident.”184 Critically, Shamlin did not testify that any of today’s

policies and acceptable practices were in place in 1985. Plaintiff cannot carry the heavy

burden of showing deliberate indifference by imposing 2025 policies and practices on

events and circumstances that took place in 1985.

Because the Court has found that there is no summary judgment evidence of a

policy, it need not consider the other Monell requirements. Accordingly, the School

Board’s summary judgment on Plaintiff’s Section 1983 claims is granted.

2. Negligence claims

Plaintiff contends the School Board is negligent under Louisiana law for negligent

training, retention and supervision.185 Plaintiff asserts that the School Board is

independently liable for failing to properly supervise Davison and failing to train Day and

its other employees to recognize and prevent sexual abuse of students. Under Louisiana

law, the duty-risk analysis applies to claims of negligent hiring, training, and

supervision.186 The elements of a Louisiana negligence claim are: (1) duty; (2) breach of

duty; (3) cause-in-fact; (4) scope of liability or scope of protection; and (5) damages.187

Employers have a duty to exercise reasonable care in hiring, retaining, and supervising

184 City of Canton, 489 U.S. at 392 (quoted in Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th

Cir.1994)).

185 Rec. Doc.70, p. 9.

186 See Roberts v. Benoit, 605 So. 2d 1032, 1041 (La. 1992).

187 Gomez v. Galman, 18 F.4th 769, 780 (5th Cir. 2021).

employees.188 “When an employer hires an employee who in the performance of his

duties will have a unique opportunity to commit a tort against a third party, he has a duty

to exercise reasonable care in the selection of that employee.”189 “The primary focus is

whether the ‘the employment gave the tortious/criminal employees “unique opportunities”

to commit their wrongdoing.’”190

Notably, in the context of schools, Louisiana courts have held:

Schools and school boards, through their employees or teachers, owe a duty

of reasonable supervision over students. The supervision required is

reasonable, competent supervision appropriate to the age of the children

and the attendant circumstances. However, this duty does not make the

school or school board the insurer of the safety of the children. Constant

supervision of all students is not possible or required for employees or

teachers to discharge their duty to provide adequate supervision. Before

liability can be imposed upon a school or school board for failure to

adequately supervise the safety of students, there must be proof of

negligence in providing supervision and also proof of a causal connection

between the lack of supervision and the accident. Further, the unreasonable

risk of injury must be foreseeable, constructively or actually known, and

preventable, if the requisite degree of supervision had been exercised.191

a. Failure to Supervise Davison

The School Board argues there is no evidence that the risk Davison posed to

students was foreseeable, constructively or actually known, or was preventable had the

requisite supervision been exercised. The School Board focuses on the lack of

foreseeability, arguing that “discovery confirms that before May 1985, no student, parent,

or employee at Southeast ever reported Davison for inappropriate conduct with

students.”192 Before Plaintiff’s assault, the School Board maintains that the only

188 Roberts, 605 So. 2d at 1041.

189 Kelley v. Dyson, 08-1202, p. 7 (La. App. 5 Cir. 3/24/09), 10 So.3d 283, 287; see Gomez, 18 F.4th 769

at 780.

190 Gomez, 18 F.4th at 780 (quoting Kelley, 10 So.3d at 287-88).

191 Doe v. E. Baton Rouge Par. Sch. Bd., 2006-1966 (La. App. 1 Cir. 12/21/07), 978 So. 2d 426, 433, writ

denied, 2008-0189 (La. 3/28/08), 978 So. 2d 306 (internal citations omitted).

192 Rec. Doc. 66-1, p. 7.

information it had regarding Davison “consisted of decade-old, community-level rumors

that Davison was ‘suspected of being homosexual, or being gay.’ These vague, dated,

and non-student-specific rumors do not suggest, much less make foreseeable, the sexual

assault of a particular student during P.E.”193

Plaintiff counters that, given what the School Board knew about Davison since

1974, sexual abuse of students was a foreseeable consequence of the failure to

supervise and protect.194 He claims that a reasonable jury could infer from the School

Board’s reaction to the 1974 rumors that the risk of sexual misconduct with children was

a possibility. Even though Day maintains these rumors concerned only Davison’s

purported homosexuality, they were serious enough to warrant a visit by law enforcement;

Assistant Superintendent Smiley instructed Day to “keep your eyes, ears open” regarding

Davison;195 Day sought Davison out periodically to ask about inappropriate contact with

students; and Day felt the need to remind Davison at the beginning of every year not to

have relationships with students.

The Court agrees that there is summary judgment evidence in the record from

which a reasonable jury could conclude that the School Board was aware in 1974 that

Davison needed heightened supervision. The statements and actions by Smiley and Day

following these rumors indicate an awareness of a risk that was not based on Davison’s

homosexuality but his interactions with neighborhood children. While the evidence of

sexual misconduct in 1974 is not overt, there is evidence in the record from which a

reasonable jury could infer that implication. When evidence is subject to different

193 Id. (quoting Rec. Doc. 65-4, pp. 126-128).

194 Rec. Doc. 70, p. 10.

195 Rec. Doc. 65-4, p. 127.

interpretations, it is the role of the jury, not the Court, to evaluate that evidence.

Accordingly, summary judgment as to this claim is denied.

b. Failure to Train Day/Other Employees

Plaintiff also claims the School Board failed to properly train Day and other

teachers on suspected sexual abuse of students. The Eastern District of Louisiana

recently set forth the important distinction between a Section 1983 failure to train claim

and a general negligent failure to train under Louisiana law:

To be clear, a claim for negligent training under state law is completely

different from the failure-to-train theory of Monell liability analyzed above.

As explained by the Fifth Circuit, “Louisiana's test for whether a duty exists

for these [negligent hiring and training] claims is different than the test for

whether [plaintiff] states a Monell claim.” Gomez v. Galman, 18 F.4th 769,

780 (5th Cir. 2021). That is, in the context of a § 1983 claim, a failure-to-

train theory of Monell liability is a specific standard requiring a plaintiff to

prove “deliberate indifference” by connecting a particular constitutional

violation to a municipality's training inadequacies through either a pattern of

similar incidents or the single incident exception. See supra, at 19-25.

Conversely, a state-law negligent training claim is based in ordinary state

negligence principles and requires no such formulaic and particularized

showing. See Warren v. Penzone, No. 22-2200, 2023 WL 7686666, at *13

(D. Ariz. Nov. 15, 2023) (“[A] pattern of prior similar incidents is ordinarily

required to establish the sort of deliberate indifference necessary to support

a Monell claim. But such a pattern is not required to support a state-law

negligent training claim. To prevail on such a claim, a plaintiff need only

demonstrate ‘that a defendant's training or lack thereof was negligent and

that such negligent training was the proximate cause of the plaintiff's

injuries.’”).196

Plaintiff argues “all reasonable inferences suggest that the other teachers working

under Day … never received any training from the School Board on recognizing,

investigating, supervising, training, reporting or preventing sexual abuse of students.”197

Plaintiff contends that if such training was provided, his sexual abuse could have been

196 A.F. by and through J.F. v. St. Tammany Parish School Board, 2025 WL 1220805, *15 (E.D. La. Apri.

28, 2025).

197 Rec. Doc. 70, p. 13.

avoided. But the only testimony regarding training was about Day’s training; no evidence

was introduced about general training policies in 1985, and Shamlin testified that he is

unaware of School Board training policies in 1985.198

The School Board responds that there is no evidence, including prior to Davison’s

hiring until his arrest, of any complaints from parents, students, or staff regarding sexual

misconduct with any student, including Plaintiff. Further, there is no evidence connecting

a lack of training to Davison criminal conduct of committing sexual assault. The School

Board maintains Plaintiff’s injuries resulted from Davison’s independent, unforeseeable,

criminal misconduct—not from any negligent hiring, retention, or training deficiency.

The Court finds that a reasonable jury could find from the evidence in this case

that Day was not properly trained to supervise problematic teachers or protect students

from sexual assault. During his decades of employment with the School Board, including

his promotion to administrative roles, Day could not recall ever receiving training

regarding sexual abuse or suspected sexual abuse of students or children.199 He could

not recall ever receiving information relating to rules or regulations regarding sexual

relationships with students.200 Day could not recall whether the School Board employee

handbook he received during the relevant time period mentioned sexual abuse.201 When

Day left teaching and began administrative roles with the School Board, he received no

additional training.202 Day acknowledged that he was given a test in 1967 or 1968 to

become an administrator, but the subject matter of the test had nothing to do with

198 See Rec. Doc. 71-1, pp. 50-53, 62, 64-65, 67, 91-93, 106, 117, 138, 144-150, 158, 166, 169-172, 175,

207, 210-214, 217, 218, 228, 238, 245.

199 Rec. Doc. 65-4, p. 91.

200 Id. at pp. 43-44.

201 Id. at p. 91.

202 Rec. Doc. 65-4, pp. 62, 82, 88-89; Rec. Doc. 71-1, pp. 308-316.

administrative responsibilities.203 As the Court previously acknowledged, the massive

time span between the training periods at issue and when Day was asked to recall may

render his testimony unhelpful; however, it is for the jury to decide. Accordingly, because

it is for the jury to determine if the School Board was negligent in the training it provided

(or failed to provide) Day, and if so, whether that lack of training was the cause in fact of

Plaintiff’s injury, summary judgment is denied on this claim.

3. Vicarious liability claims

Under Louisiana law, an employer is liable for the acts of its employee committed

in the course and scope of his employment.204 These two terms are not synonymous.

Rather, the course of employment refers to the time and place of the conduct; the scope

of employment refers to the employment-related risk of injury.205 “[A]n employee's

conduct is within the course and scope of employment if the conduct is of the kind that

the employee is employed to perform, occurs substantially within the authorized limits of

time and space, and is activated at least in part by a purpose to serve the employer.”206

When determining whether an employer could be vicariously liable for an intentional tort

committed by its employee, courts look to whether: (1) the tortious act was primarily

employment rooted, (2) reasonably incidental to the performance of the employee's

duties, (3) occurred on the employer's premises, and (4) occurred during the hours of

employment.207 However, this is not an exclusive list of factors.208 The Louisiana Supreme

Court has stated, “The particular facts of each case must be analyzed to determine

203 Rec. Doc. 65-4, pp. 29-31; Rec. Doc. 71-1, pp. 308-316.

204 LeBrane v. Lewis, 292 So.2d 216, 217–18 (La. 1974).

205 Benoit v. Capitol Mfg. Co., 617 So.2d 477, 479 (La. 1993).

206 Crawford v. Wal-Mart Stores, Inc., No. 10-805-M2, 2011 WL 3206196, at *2 (M.D. La. July 26, 2011).

207 Id.

208 Miller v. Keating, 349 So.2d 265, 268 (La. 1977).

whether the employee's tortious conduct was within the course and scope of his

employment.”209 Essentially, once it is established that the employee acted within the

course of his employment, the employer's vicarious liability hinges on whether the

“purpose of serving the employer's business actuated the employee to any appreciable

extent.”210

The decision in T.S. v. Rapides Par. Sch. Bd.,211 is directly on point. There, the

school board was sued by a female sophomore in high school who was subjected to

sexually inappropriate comments, groped, and “French-kissed” by a teacher on two

separate occasions during school. In defending the plaintiff’s vicarious liability claim, the

school board argued that the teacher was not acting in the course and scope of his

employment because the victim was not one of his students.212 The court rejected this

“feeble” and “far-fetched” argument and opined:

The supreme court has explained that being in the “course of employment”

relates to time and place while the “scope of employment” relates to

determining whether the conduct is an employment-related risk of injury.

Benoit v. Capitol Mfg. Co., 617 So.2d 477 (La.1993); Orgeron v. McDonald,

93–1353 (La.7/5/94), 639 So.2d 224. Both sexual assaults upon Plaintiff

occurred at school, in a classroom, during the school day hours, while the

defendant teacher was engaged in assisting that student and a fellow

teacher with school business. We cannot say the trial court manifestly erred

in finding Lebeouf's conduct sufficiently employment-related so as to

impose vicarious liability on his employer, the School Board. LeBeouf's

conduct while interacting with a female student in his classroom during

school hours when that student and LeBeouf were clearly engaged in

school business, was, indeed, so closely related in time, place, and

causation to Lebeouf's employment duties as a teacher, as to be regarded

a risk of harm fairly attributable to the School Board's business. See

LeBrane, 292 So.2d 216.213

209 Baumeister v. Plunkett, 95-2270, p. 4. (La. 5/21/96), 673 So. 2d 994, 997.

210 Crawford, 2011 WL 3206196, at *2 (citing Johnson v. Littleton, 45,323 (La. App. 2 Cir. 5/19/10) 37 So.

3d 452).

211 No. 08-1359, 11 So.3d 628 (La. App. 3 Cir. 6/3/09).

212 Id. at 631.

213 Id.

The summary judgment evidence presented in this case reflects that Davison’s

access to Plaintiff was at least similar, if not greater given his position of authority, to that

seen in Booth v. Orleans Parish School Board, which involved vicarious liability claims

against a school board for a janitor’s alleged sexual assault of a child on school

property.214 In determining whether the tortious conduct was reasonably incidental to the

performance of the janitor’s employment duties, the court considered testimony

establishing that the janitor possessed keys to premises and was allowed free access to

the school grounds and buildings. His status as a janitor was said to have provided him

access to the young children who attended the school and, “[g]iven his prominent

presence on the school's campus and the fact that he was an adult, it is natural that an

eight year old child would view him as an authority figure” and not question his

directives.215 The court held that the school board could be found vicariously liable for the

janitor’s misconduct, and summary dismissal was improper.216

The same result is mandated here. It is undisputed that Plaintiff’s sexual abuse by

Davison occurred at Southeast, where Davison was employed and where Plaintiff was a

student; during school hours; and in a manner that would not have been possible without

the authority given to Davison via his employment by the School Board. Davison’s

employment put him in a position of trust and gave him access to and control of children

on School Board premises. There is competent summary judgment evidence in the record

from which a reasonable jury could conclude that the School Board is vicariously liable

for Davison’s conduct.

214 No. 2009-1505 (9/22/10), 49 So.3d 919.

215 Id. at 922.

216 Id.

III. CONCLUSION

For the foregoing reasons, Defendant Richard Day’s Motion for Summary

Judgment is GRANTED.217 Defendant East Baton Rouge Parish School Board’s Motion

for Summary Judgment is GRANTED as to the Section 1983 claims, including punitive

damages, but is DENIED as to the state law claims.218

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana this 9th day of February, 2026.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

217 Rec. Doc. 65.

218 Rec. Doc. 66.