holding that school district superintendent’s escalating physical assault over several weeks, including coerced oral sex, was “serious physical assault” that stated a claim for a violation of substantive due process
How later courts described this case
- holding that school district superintendent’s escalating physical assault over several weeks, including coerced oral sex, was “serious physical assault” that stated a claim for a violation of substantive due process
- finding school superintendent who sexually assaulted teacher and threatened to disapprove her renewal of her teacher’s license if she did not engage in sexual acts with him, acted under color of state law by “explicit invocation of his. state-granted powers”
- holding that substantive due process claim was adequately stated based on allegations of “serious physical assault,” such as the victim being touched, kissed, and forced to perform fellatio without consent
- holding that school district superintendent was acting under color of state law when he “threatened to take adverse employment actions against” an employee if she did not engage in sexual acts
Written by the judges who cited it.
The opinion
HARLINGTON WOOD, JR., Circuit Judge, with whom BAUER, Circuit Judge, joins,
concurring.
It is with some hesitation that I join the reversal of the district court’s dismissal of plaintiff Hope Wudtke’s due process claim against defendant Davel.
Buried in the twenty-seven pages of Wudtkes’ pro se and broad ranging conspiracy allegations from RICO claims to Hobbs Act violations we have managed to find one possible viable claim. The rest of plaintiffs’ charges described by the Magistrate as “rambling,” and “difficult to comprehend” include various allegations from sexual advances to mortgage foreclosures and clearly deserve1 to be dismissed. Involved, among others, are the Republican Party, the United States Postal Service, the Wisconsin State Patrol, the Central Intelligence Agency, or National Security Council, courts, and various Canadian government agencies. Based on their imaginative allegations the Wudtkes sought compensatory damages of something in excess of $28 million dollars.
Apart from deciphering the allegations the legal problem is in determining whether Davel was acting under color of state, law in his alleged sexual assaults. In holding that there is that possibility so as to constitute a substantive due process constitutional claim wé are doing some exploring, at least in this circuit. I would ordinarily have preferred that this holding be based on more rehable pleadings without the risk of additional and possibly undeserved difficulties for Davel. All sexual assaults in the schoolhouse need not be made constitutional issues for a federal tribunal. It is conceded that plaintiff has *1065 a state postdeprivation remedy. Davel’s alleged sexual activities could not have been anticipated by the State. It is easy, therefore, for me to understand the district court’s view of this situation.
Because of the particular sexual allegations, however, in which Davel, the school superintendent and plaintiffs superior, allegedly threatened Wudtke’s teacher’s license and her job the constitutional claim may merit further consideration. On remand the district court may be able to better ascertain the facts and circumstances, and then determine whether there is any basis to support Wudtke’s federal constitutional claim.
Having expressed these reservations I join the opinion.