Jane Doe II v. Savannah-Chatham County Public School System

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13023

Non-Argument Calendar

____________________

JANE DOE II, as Administrator

Of the Estate of Jane Doe I; and of

JOHN DOE I,

Plaintiffs-Appellants,

versus

SAVANNAH-CHATHAM COUNTY

PUBLIC SCHOOL SYSTEM and

MARVIN T. JOHNSON,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 4:18-cv-00180-WTM-CLR

____________________

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2 Opinion of the Court 21-13023

Before LUCK, LAGOA, and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiffs John Doe and Jane Doe II (as administrator of the

estate of Jane Doe I)1 appeal the district court’s grant of summary

judgment in favor of Defendants Savannah-Chatham County Pub-

lic School System (“District”) and Marvin T. Johnson. Plaintiffs

brought claims against Defendants under Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”), and under 42

U.S.C. § 1983. 2 Reversible error has been shown. We affirm in

part and vacate in part the district court’s final judgment, and we

remand for further proceedings.

I.

1 Jane Doe I filed initially this civil action on behalf of herself and her minor

son, John Doe. Jane Doe I later died during the pendency of this case. The

district court granted a motion to substitute as plaintiffs John Doe (who by

then had turned 18) and Jane Doe II, as administrator of Jane Doe I’s estate.

2 Plaintiffs raise no challenge to the district court’s grant of summary judg-

ment in favor of Defendants on Plaintiffs’ claim for negligent hiring and reten-

tion under Georgia law or the district court’s grant of summary judgment in

favor of Johnson on Plaintiffs’ claim for violation of Title IX. Those claims are

not before us on appeal.

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21-13023 Opinion of the Court 3

This appeal stems from an alleged sexual assault of a 16-year-

old high school student by a high school assistant principal. On 31

January 2017, John Doe (then a sophomore at Savannah High

School) stayed after school for detention. Johnson, an assistant

principal, was one of the staff members overseeing the detention.

After detention ended, Johnson offered Doe a ride home.

Doe accepted. Instead of taking Doe directly home, however,

Johnson drove Doe to Johnson’s house and told Doe to come in-

side. Once inside, Johnson removed his pants, instructed Doe to

perform oral sex on him, and engaged in sexual intercourse with

Doe. After the assault, Johnson drove Doe home. Johnson had no

other sexual contact with Doe before or after this incident.

In April 2017, Doe noticed a rash forming on his body. On

28 April, Doe emailed Johnson and asked if Johnson had HIV or

AIDS. Over the next couple of days, Doe and Johnson exchanged

several emails in which they discussed getting tested for sexually-

transmitted diseases and in which Doe said that Johnson was the

only person Doe had had sex with.

On 30 April, Doe told his mother about the 31 January prior

incident. Prior to telling his mother, Doe had told no one about

the incident.

On 1 May 2017, Doe’s mother and stepfather went to the

school and reported the 31 January incident to the high school’s

principal, Tammy Broadnax. Broadnax and the school’s resource

officer then talked to Doe about what happened on 31 January.

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4 Opinion of the Court 21-13023

After speaking with Doe, the school resource officer called the po-

lice. The police came to the school and obtained a statement from

Doe.

After the police interviewed Doe, Broadnax called her super-

visor and the District’s director of risk management. Broadnax

then had the school’s social worker contact the Department of

Family and Child Services. The District also arranged for Doe to

transfer immediately to another school. All of these things hap-

pened on 1 May.

Also on 1 May, Johnson met with Broadnax, the District’s

director of risk management, and the District’s Chief Human Re-

sources Officer. Following this meeting, the District prohibited

Johnson from having further access to students. District officials

then searched Johnson’s email and discovered the April 2017 email

exchange between Doe and Johnson.

On 2 May, District officials decided not to renew Johnson’s

employment contract: a decision the District considered the most

efficient way to terminate Johnson’s employment. On 11 May, the

District notified Johnson that his contract would not be renewed

and that his employment with the District would terminate on 30

June 2017. At Johnson’s request, the District scheduled a hearing

on the nonrenewal of Johnson’s contract. But on 31 July (before

the scheduled hearing date), Johnson tendered his resignation.

Plaintiffs filed this civil action in state court. In their

amended complaint, Plaintiffs asserted claims for violations of Title

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21-13023 Opinion of the Court 5

IX and section 1983. The District removed the case to federal dis-

trict court and both Defendants moved for summary judgment.

The district court granted summary judgment in favor of Defend-

ants. This appeal followed.

II.

On appeal, Plaintiffs first challenge the district court’s grant

of summary judgment in favor of Johnson on Plaintiffs’ section

1983 claim. The district court determined that Count III of Plain-

tiffs’ amended complaint contained no specific allegations about

“whether or how” Johnson violated Doe’s constitutional rights.

The district court thus determined that Count III asserted a section

1983 claim against only the District under a municipal-liability the-

ory and asserted no individual-liability claim against Johnson. Hav-

ing concluded that Plaintiffs’ amended complaint asserted no sec-

tion 1983 claim against Johnson (and that Plaintiffs failed to seek

leave to further amend their complaint), the district court granted

Johnson’s motion for summary judgment.

We review de novo the district court’s grant of summary

judgment. See Sauls v. Pierce Cty. Sch. Dist., 399 F.3d 1279, 1283

(11th Cir. 2005). We also review de novo a district court’s dismissal

for failure to state a claim, “accepting the allegations in the com-

plaint as true and construing them in the light most favorable to

the plaintiff.” See Butler v. Sheriff of Palm Beach Cty., 685 F.3d

1261, 1265 (11th Cir. 2012).

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6 Opinion of the Court 21-13023

To comply with federal pleading standards, a complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). To

avoid dismissal, a complaint must also “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim

has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defend-

ant is liable for the misconduct alleged.” Id.

We have said that “[t]he failure to specify which particular

defendants certain allegations relate to is not fatal when ‘[t]he com-

plaint can be fairly read to aver that all defendants are responsible

for the alleged conduct.’” See Auto. Alignment & Body Serv. v.

State Farm Mut. Auto. Inc. Co., 953 F.3d 707, 733 (11th Cir. 2020)

(citing Kyle K. v. Chapman, 208 F.3d 940, 944 (11th Cir. 2000)).

To state a claim for relief under section 1983, a plaintiff must

allege facts showing (1) that an act or omission deprived him of

“rights, privileges, or immunities secured by the Constitution or

laws of the United States”; and (2) that the act or omission “was

committed by a person acting under color of state law.” Harvey v.

Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).

Reading the entire amended complaint, we conclude that

Plaintiffs pled sufficient factual content (accepted as true) to allow

a court to draw the reasonable inference that Johnson is liable un-

der section 1983. Plaintiffs’ amended complaint alleges that John-

son -- acting in his role as assistant principal for the District -- drove

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21-13023 Opinion of the Court 7

Doe from school to Doe’s home but interrupted that drive to stop

at Johnson’s home where Johnson sexually assaulted Doe: an act

Plaintiffs say violated Doe’s constitutional right to bodily integrity.

As the district court observed, Count III (dealing with sec-

tion 1983) of Plaintiffs’ amended complaint focuses on the District’s

liability under section 1983. Nevertheless -- given the straightfor-

wardness of the factual allegations in the whole complaint and that

Plaintiffs named only two defendants -- the complaint all in all can

be read fairly as asserting a section 1983 claim both against the Dis-

trict and against Johnson individually. Plaintiffs’ amended com-

plaint is far from the kind of pleading that makes it “virtually im-

possible” for the defendants to understand which claims are being

asserted against them. Cf. Weiland v. Palm Beach Cty. Sheriff’s

Office, 792 F.3d 1313, 1323-25 (11th Cir. 2015) (describing this

Court’s disapproval of “shotgun pleadings” -- including complaints

“asserting multiple claims against multiple defendants without

specifying which of the defendants are responsible for which acts

or omissions, of which of the defendants the claim is brought

against” -- because such pleadings fail to provide adequate notice

to defendants about the claims asserted against them and the

grounds upon which each claim rests).

We conclude that the district court erred in determining that

Plaintiffs’ amended complaint alleged no individual-liability claim

against Johnson under section 1983. We vacate the district court’s

grant of summary judgment in favor of Johnson on this claim and

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8 Opinion of the Court 21-13023

remand for further consideration of Plaintiffs’ section 1983 claim

on the merits.

III.

Plaintiffs next challenge the district court’s grant of sum-

mary judgment in favor of the District. We review de novo a dis-

trict court’s grant of summary judgment, viewing the facts and

drawing all reasonable inferences in the light most favorable to the

non-moving party. See Sauls, 399 F.3d at 1283. Summary judg-

ment is appropriate where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a).

A. Title IX

Under Title IX, “[n]o person in the United States shall, on

the basis of sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any education

program or activity receiving Federal financial assistance.” 20

U.S.C. § 1681(a). A teacher’s sexual harassment of a student con-

stitutes actionable sex-based discrimination under Title IX. See

Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 75-76 (1992). In

cases involving teacher-on-student sexual harassment, our Title IX

analysis is governed by the Supreme Court’s decision in Gebser v.

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21-13023 Opinion of the Court 9

Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). See Doe v. Sch.

Bd. of Broward Cty., Fla., 604 F.3d 1248, 1254 (11th Cir. 2010). 3

Under Gebser, a plaintiff “seeking to recover damages

against a school district for teacher-on-student sexual harassment

must establish two things to survive summary judgment: (1) a

school district official with the authority to take corrective

measures had actual notice of the harassment; and (2) the official

with such notice was deliberately indifferent to the misconduct.”

Sauls, 399 F.3d at 1284 (citing Gebser, 524 U.S. at 290-93).

“Deliberate indifference is an exacting standard; school ad-

ministrators will only be deemed deliberately indifferent if their ‘re-

sponse to the harassment or lack thereof is clearly unreasonable in

light of the known circumstances.’” Doe, 604 F.3d at 1259. Under

this standard, an administrator is deliberately indifferent when he

makes “an official decision . . . not to remedy the [Title IX] viola-

tion.” See Gebser, 524 U.S. at 290.

About the first element, District officials first learned about

the 31 January 2017 incident on 1 May 2017. 4 We next consider

3 Plaintiffs contend -- without citation to legal support -- that the district court

erred in applying Gebser to resolve the Title IX claim in this case. We disagree.

For purposes of establishing Title IX liability, we see no material difference

between the sexual harassment of a student by a teacher (as in Gebser) versus

by an assistant principal (as in this case).

4 On appeal, Plaintiffs argue for the first time that Johnson -- as an assistant

principal -- constituted a person “with authority to take corrective measures.”

Because Johnson had actual notice of his own misconduct and failed to remedy

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10 Opinion of the Court 21-13023

whether the District responded to this information with deliberate

indifference.

Immediately upon receiving the complaint from Doe’s par-

ents, Broadnax notified her supervisor and the District’s director of

risk management about the reported 31 January incident. District

officials contacted the police and the Department of Family and

Child Services. That same day, the District began investigating the

incident, including interviewing Doe and Johnson, and reviewing

Johnson’s emails. The District also prohibited Johnson from hav-

ing contact with students and arranged for Doe to transfer to an-

other school. One day after receiving Doe’s complaint, the District

decided not to renew Johnson’s contract. The District also re-

ported the alleged incident for further investigation by the Georgia

Professional Standards Committee, which later resulted in the rev-

ocation of Johnson’s teaching license.

On this record, we cannot conclude that the District’s re-

sponse was “clearly unreasonable” under the known circum-

stances. See Sauls, 399 F.3d at 1285-87 (finding no deliberate indif-

ference when school officials responded to complaints about a

the situation, Plaintiffs say the District acted with deliberate indifference. We

reject this argument. First, arguments raised for the first time on appeal are

not properly before us. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d

1324, 1331 (11th Cir. 2004). Moreover, the Supreme Court has said that

“[w]here a school district’s liability [under Title IX] rests on actual notice prin-

ciples . . . the knowledge of the wrongdoer himself is not pertinent to the anal-

ysis.” See Gebser, 524 U.S. at 291.

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21-13023 Opinion of the Court 11

teacher’s harassment of students by investigating promptly the al-

legations, interviewing the pertinent parties, monitoring the

teacher’s conduct, and by instructing the teacher to avoid being

alone with male students); Davis v. DeKalb Cty. Sch. Dist., 233 F.3d

1367, 1373-75 (11th Cir. 2000) (finding no deliberate indifference

where school officials investigated the complaint, interviewed per-

tinent parties, ordered the alleged harasser to stay away from the

victim and to avoid being alone with female students, and moni-

tored closely the harasser’s behavior).

Plaintiffs have failed to create a genuine issue of material fact

about whether the District acted with deliberate indifference. The

District was thus entitled to summary judgment on Plaintiffs’ Title

IX claim.

B. 42 U.S.C. § 1983

A school district “may not be liable under section 1983 on a

theory of respondeat superior.” Davis, 233 F.3d at 1375. Instead,

“[a] plaintiff seeking to impose liability on a municipality (school

district) under section 1983 must identify a municipal ‘policy’ or

‘custom’ that caused a deprivation of federal rights.” Id.

That the District had an express policy prohibiting sexual re-

lationships between students and teachers is undisputed. Never-

theless, Plaintiffs contend that the District had a “policy, practice

and/or custom of lax investigation and non-responsiveness” to

complaints of teacher-on-student sexual harassment. We have

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12 Opinion of the Court 21-13023

recognized that “a municipality’s failure to correct the constitution-

ally offensive actions of its employees can rise to the level of a cus-

tom or policy ‘if the municipality tacitly authorizes these actions or

displays deliberate indifference’ towards the misconduct.” See

Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001).

Plaintiffs have offered no evidence supporting their conclu-

sory allegation that the District had a custom of “lax investigation

and non-responsiveness” in the face of complaints about teacher-

on-student sexual harassment. 5 Plaintiffs have evidenced no spe-

cific facts demonstrating that the District knew about or responded

inadequately to prior complaints of sexual harassment in general

or that the District knew about and responded with deliberate in-

difference to earlier complaints about Johnson’s misconduct. Nor

did the District act with deliberate indifference in response to the

complaint underlying this appeal.

We also reject Plaintiff’s contention that the District can be

held liable under section 1983 because Johnson committed the

5 Plaintiffs argue incorrectly that they need only allege facts sufficient to state

a plausible claim for relief and, thus, need not prove that the District engaged

in a pattern of deliberate indifference. This “plausibility” standard -- a pleading

standard applicable at the motion-to-dismiss stage of the proceedings -- is in-

applicable here. To survive the District’s motion for summary judgment,

Plaintiffs must come forward with ‘specific facts showing that there is a genu-

ine issue for trial’” and may not rest upon the allegations set forth in their

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

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21-13023 Opinion of the Court 13

alleged sexual assault while acting as an assistant principal. “Mu-

nicipal liability from a single action or decision may only be

deemed representative of the municipality if the acting official is

imbued with final policymaking authority.” See Doe, 604 F.3d at

1264 (emphasis in original) (quotations and brackets omitted); Mat-

thews v. Columbia Cty., 294 F.3d 1294, 1297 (11th Cir. 2002)

(“[O]nly those municipal officers who have final policymaking au-

thority may by their actions subject the government to § 1983 lia-

bility.”). An official has no “final policymaking authority” when his

decisions are “subject to meaningful administrative review.”

Denno ex rel. Denno v. Sch. Bd. of Volusia Cty., Fla., 218 F.3d 1267,

1276 (11th Cir. 2000).

Plaintiffs have not shown that Johnson had “final policymak-

ing authority” sufficient to subject the District to section 1983 mu-

nicipal liability. Johnson (who shared his duties with another assis-

tant principal) was under the direct supervision of Principal

Broadnax who, in turn, reported to the executive director. Noth-

ing evidences that Johnson had authority to make unreviewable

decisions on behalf of the District. Because Johnson was no “final

policymaker,” his single act of misconduct cannot trigger munici-

pal liability. See Doe, 604 F.3d at 1264-65 (concluding that the

school principal was no “final policymaker” -- and thus could not

subject the school board to municipal liability -- when the principal

had authority to make mere recommendations to his supervisor,

which the supervisor was then free to accept or to reject).

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14 Opinion of the Court 21-13023

In sum, we affirm the district court’s grant of summary judg-

ment in favor of the District on Plaintiffs’ claims under Title IX and

under section 1983. We vacate the district court’s grant of sum-

mary judgment in favor of Johnson on Plaintiffs’ section 1983 claim

and remand for further proceedings.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.