Soper ex rel. Soper v. Hoben

MOORE, Circuit Judge,

concurring in part and dissenting in part.

Because I disagree with the majority’s resolution of the state claim, and with aspects of the opinion on the federal claims, I respectfully dissent from the affirmance of the grant of summary judgment.

Turning to the state tort claim first, the majority asserts as a matter of law and without analysis that the actions of the defendants did not amount to gross negligence under Michigan law. I do not agree. Specifically, whether the actions of Harmala amounted to gross negligence is a question of fact for the jury. Assuming the truth of the plaintiffs’s assertions, as we must on a motion for summary judgment by defendants, Harmala was warned specifically about the conduct of Boy A when it came to Renee Soper. Renee’s mother indicated that she did not want the two to be alone together and unsupervised at any time, and claims to have told Har-mala of her concerns. Nonetheless, Har-mala allowed Boy A to accompany Renee Soper to her locker and did not supervise them. They were able to conceal themselves from her at that time and the rape occurred shortly thereafter in the abandoned classroom, while the rest of the students were at lunch. I cannot agree that no rational jury could find that these facts, if proved, amounted to gross negligence on the part of Harmala.

I turn next to the § 1983 claims. The majority properly does not affirm the district court’s presumption that the individual defendants were sued only in their official capacities. In this case such a presumption would be inappropriate. Our precedent, Wells v. Brown, 891 F.2d 591 (6th Cir.1989), offers two reasons for its conclusion that a suit against state officials in a § 1983 action must make clear *856 that they are being sued in their individual capacities: the necessity for proper notice to defendants that personal assets may be at risk in a cause of action, and the Eleventh Amendment bar to suits against a state in federal court. In this case, neither concern is valid, and it is improper to presume an official capacity suit.

First, there is no indication that the defendants in this case were prejudiced by the omission. Their brief in support of the motion for summary judgment argues that the individual defendants are entitled to qualified immunity, which is a personal defense. This court has consistently distinguished Wells when the facts indicated that the defendants had actual or constructive notice of the capacity in which they were being sued. See, e.g., Brown v. Shaner, 172 F.3d 927, 933-34 (6th Cir.1999) (Second Amended Complaint “related back” to original complaint as to capacity in which officers were being sued because alleged wrongdoing concerned personal conduct, defendants “should have known” they were being sued in their individual capacity, and they were not prejudiced in maintaining a defense on the merits); Pelfrey v. Chambers, 43 F.3d 1034, 1037-38 (6th Cir.) (separate motion filed one month after complaint provided sufficient notice of suit against defendants in individual capacity), cert. denied, 515 U.S. 1116 , 115 S.Ct. 2269 , 132 L.Ed.2d 273 (1995); Abdur-Rahman v. Michigan Dep’t of Corrections, 65 F.3d 489, 491 (6th Cir.1995) (plaintiffs response to defendant’s motion for summary judgment provided sufficient notice that defendant was being sued in his individual capacity).

The first mention of capacity as an issue in this case is the district court’s order granting summary judgment. It does not appear that the plaintiffs were given an opportunity to amend their complaint. Until that point, both parties assumed the § 1983 action was in part a suit against the individual defendants in their personal capacity. This is clearly not a case of prejudice to the defendants due to lack of notice about the nature of the suit against them — both parties briefed qualified immunity to the district court and to this court. It strikes me as reminiscent of the hypertechnical pleading practice of days gone by for the district court simply to “read out” one of the plaintiffs’s causes of action on the basis of a technical deficiency that went unrecognized by both parties, especially when no prejudice accrued to the defendants.

More important, the rationale of Wells depends on reading the Federal Rules of Civil Procedure in conjunction with federal Eleventh Amendment jurisprudence. The Federal Rules provide that “[i]t is not necessary to aver the capacity of a party to sue or be sued ... except to-the extent required to show the jurisdiction of the court.” Fed. R. Civ. P 9(a). The Wells court therefore concluded on the facts before it that “because the Eleventh Amendment places a jurisdictional limit on federal courts in civil rights cases against states and state employees, we understand Rule 9(a) to require plaintiffs to properly allege capacity in their complaint.” Wells, 891 F.2d at 593 . The Eleventh Amendment is not at issue in this case, as the individual defendants here are municipal employees, and a § 1983 suit against a municipality is not barred by the Eleventh Amendment. As the Supreme Court has written, “[tjhere is no longer a need to bring official-capacity actions against local government officials, for ... local government units can be sued directly for damages and injunctive or declaratory relief.” Kentucky v. Graham, 473 U.S. 159 , 167 n. 14, 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985). The Court went on to say that in cases where the complaint does not clearly specify the capacity in which officials are sued, “ ‘[t]he course of proceedings’... typically will indicate the nature of the liability sought to be imposed.” Id. The jurisdictional concern of Wells is not present here, and “the course of proceedings,” as de- *857 personal bility was sought to be imposed.

The facts before us are much like those in Perry v. Croucher, No. 97-3033, 1998 WL 661151 , at *7-*8 (6th Cir.1998), in which the complaint used language such as “willfully, maliciously, and with reckless indifference” to describe the defendant’s actions, and the defendants pleaded personal immunity in response, acting “with the understanding that they were being sued in their personal capacities.” Id. at *8. Here, the complaint alleges that the acts of the individual defendants were “reckless, wilful, wanton, malicious and/or intentional,” J.A. at 23, it seeks relief from them “jointly and severally in an amount in excess of $10,000,” J.A. at 24, and the defendants have acted at all times with the understanding that they are being sued in their individual capacities. For the above reasons, it was error for the district court to deem the § 1983 action as one against the defendants only in their official capacity. Therefore, I believe that the majority properly reaches the qualified immunity defense offered by the defendants and briefed by both parties.

Turning to the Title IX claim, I agree with the majority that it is the federal recipient and not the individual defendants that can be held liable for sexual discrimination under Title IX, but I disagree that this cause of action should have been dismissed on summary judgment. The majority asserts that the Sopers have not presented evidence that the school district or the school board had actual notice of the harassment and were deliberately indifferent to it. If one considers as harassment only the incident of Renee’s rape by Boy A, that assertion is correct. When the school learned of the rape, it did take steps to investigate and to prevent recurrence of a similar incident in the future. But if one considers the earlier incidents between Boy A and Renee to be harassment — incidents known to some of the defendants and reported to Renee’s teachers as a matter of concern by Renee’s mother — the school did have notice of harassment. Although assurances were given, no steps were actually taken to minimize or stop the harassment. The specific request that Renee not be alone in the presence of Boy A was ignored. Arguably, these actions amounted to deliberate indifference to the concerns about harassment brought to Renee’s teachers by her mother. I believe that the Sopers at least should have been given the opportunity to make the case that the school’s actions amounted to a violation of Title IX, and that dismissal on summary judgment was inappropriate.

For the foregoing reasons, I respectfully dissent from the opinion of the court in this case.