Adams v. Demopolis City Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

JASMINE ADAMS, et al., )

)

Plaintiffs, )

)

v. ) CIV. ACT. NO. 2:20-cv-27-TFM-N

)

DEMOPOLIS CITY SCHOOLS, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

The death of a child is tragic and even more so if it is by suicide. Regardless of the legal

issues in this case, the death of McKenzie Adams is a stark reminder of the tragedy of suicides and

the effect on those left behind wondering why.

Pending before the Court are Defendants’ Motion for Summary Judgment and Brief in

Support of Defendants’ Motion for Summary Judgment (Docs. 180, 181, filed July 14, 2021). The

Court has considered the Defendants’ motion and brief, the Plaintiffs’ responsive brief (Doc. 189,

filed August 19, 2021) and evidence, the Defendants’ reply brief (Doc. 190, filed September 2,

2021), the arguments of counsel during the lengthy hearing held November 22, 2021, and relevant

law. As a result, the Court finds Defendant’s motion for summary judgment (Doc. 180) is due to

be GRANTED for the reasons articulated below.

I. PARTIES1 AND JURISDICTION

Plaintiffs Jasmine Adams (“Jasmine”), individually as the mother of McKenzie Adams

1 For the purposes of clarity, the Court will use the first names of the individuals. McKenzie is the

nine-year old decedent. Jasmine is her mother. Janice is her grandmother with whom McKenzie

lived.

(“McKenzie”)2, and McKenzie’s grandmother Janice Adams (“Janice”), as the personal

representative of McKenzie’s estate (collectively, “Plaintiffs”), assert claims against Defendants

Demopolis City Schools (“DCS”), former DCS superintendent Kyle Kallhoff (“Kallhoff”), former

U.S. Jones Elementary School’s Principal Tori Infinger (“Infinger”), former U.S. Jones

Elementary School’s Assistant Principal Tracy Stewart (“Stewart”), and U.S. Jones Elementary

School fourth grade teacher Gloria Mims (“Mims”) (collectively, “Defendants”). Plaintiffs filed

this action pursuant to 42 U.S.C. § 1983, 20 U.S.C. § 1681, et seq., and 32 U.S.C. § 2000d, seeking

redress of injuries suffered by McKenzie and the Plaintiffs, due to deprivation of rights secured by

the Fourteenth Amendment to the United States Constitution. This Court has subject matter

jurisdiction over the claims in this action pursuant to 28 U.S.C. §§ 1331 (federal question

jurisdiction) and 1343(a)(3) (civil rights and elective franchise). Pursuant to 28 U.S.C. § 1367(a),

this Court has supplemental jurisdiction over Plaintiffs’ Alabama state law claims that relate to the

42 U.S.C. § 1983 civil rights action that form part of the same case and controversy.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the cause of action

arose in Marengo County, Alabama, which is located within the Southern District of Alabama,

Southern Division.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

This case arises from the tragic death of McKenzie by suicide on December 3, 2018, in the

home of her grandmother, Janice, where McKenzie lived. At the time, McKenzie was a 9-year-

old fourth grader at U.S. Jones Elementary School, which is a part of the Demopolis, Alabama,

2 Normally the Court would redact the name of a minor. Here, concealment of the minor’s identity

is not required because the minor is deceased, and the Complaint fully identifies her.

City School System. Janice testified that on the date of her death McKenzie attended school and

came home as usual, around 3:45 p.m. See Doc. 189-11, Janice Depo., at 44. She seemed “a little

quieter than usual but had a snack and began her homework.” Id. at 45. Janice could not recall

anything different about her behavior and had absolutely no reason to believe she might do

something to harm herself. Id. at 45-46. Plaintiffs attribute McKenzie’s suicide to bullying and

harassment they say McKenzie endured at school; the Defendants’ alleged failure to implement

appropriate policies to prevent bullying; and their failure to train school staff adequately in

recognizing and responding to bullying behavior.

In response to a report from Janice in late October 2018, Ms. Stewart prepared a plan to

deal with any student harassing or bullying McKenzie. Id. at 83-88. The plan was acceptable to

Janice. Id. at 88-89. Janice never had any reason to follow up with Ms. Stewart.

B. Procedural Background

Plaintiffs filed their Complaint on January 16, 2020. Doc 1. In response, Defendants filed

an Answer on February 13, 2020. Doc. 13. Plaintiffs filed a First Amended Complaint on April

23, 2020, in which U.S. Jones Elementary School was terminated as a defendant. Doc. 27.

Subsequently, the Court denied Defendants’ motion for judgment on the pleadings as moot. Docs.

16, 28. Defendants filed an Answer to First Amended Complaint on May 7, 2020. Doc. 36. After

the Court granted leave to amend their Complaint, Plaintiffs filed a Second Amended Complaint

on July 10, 2020. Doc. 44. Defendants filed an Answer to Second Amended Complaint on July

24, 2020. Doc. 45.

In the Second Amended Complaint, now the operative pleading, Plaintiffs assert eleven

counts.

• Count I accuse DCS of violating Title IX of the Education Amendments of 1972, 20

U.S.C. § 1681, et seq.

• Count II pleads violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d

by DCS.

• Count III states a claim under 42 U.S.C. § 1983 for alleged violation by DCS, Kallhoff

and Infinger of McKenzie’s right to substantive due process under the 14th Amendment

to the U.S. Constitution.

• Count IV asserts a § 1983 claim for violation of 14th Amendment equal protection rights

by DCS, Kallhoff and Infinger.

• Count V argues wrongful death under Ala. Code § 6-5-391 arising from negligent,

reckless or wanton hiring, training, retention and supervision of personnel by DCS.

• Count VI maintains a similar claim under Ala. Code § 6-5-391 against Infinger, Stewart

and Mims for negligent, reckless or wanton conduct.

• Count VII, also under Ala. Code § 6-5-391 contends wrongful death resulting from

Kallhoff’s, Infinger’s, Mims’ and Stewart’s negligent, reckless, wanton or wrongful

actions or failure to act.

• Count VIII, again under 42 U.S.C. § 1983, avers DCS, Kallhoff and Infinger violated

McKenzie’s 14th Amendment substantive due process rights by failing to properly hire,

train, and supervise DCS personnel.

• Count IX alleges a 42 U.S.C. § 1983 claim that all Defendants breached a duty to protect

McKenzie by failing to train teachers and administrators adequately, resulting in a

substantive due process violation.

• Count X advances a 14th Amendment substantive due process violation by DCS through

a policy or custom of inaction in failing to prevent harassment between students and

failing to train teachers and administrators adequately.

• Count XI charges Kallhoff maintained a policy or custom of failing to prevent

harassment between students and failing to enforce rules against bullying, thereby

violating McKenzie’s 14th Amendment substantive due process rights.

On July 14, 2021, Defendants filed their motion for summary judgment and brief in

support. Docs. 180, 181, filed July 14, 2021. Plaintiffs filed a Response on August 19, 2021, to

which Defendants filed a reply on September 2, 2021. Docs. 189, 190. On September 3, 2021,

Plaintiffs filed a motion for Oral Argument which the Court granted. Docs. 191, 196. The Court

held an oral argument hearing on November 22, 2021. The Court has considered the written

submissions and the arguments of counsel during the lengthy hearing. Further, the motions are

fully briefed and ripe for adjudication.

III. STANDARD OF REVIEW

A party in a lawsuit may move a court to enter summary judgment before trial. FED. R.

CIV. P. 56(a), (b). Summary judgment is appropriate when the moving party establishes there is

no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter

of law. FED. R. CIV. P. 56(a); see also Greenberg v. BellSouth Telecomms, Inc., 498 F.3d 1258,

1263 (11th Cir. 2007) (“Summary judgment is appropriate ‘if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show there is no

genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a

matter of law.’”). “[T]he substantive law will identify which facts are material.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also

Ritchey v. S. Nuclear Operating Co., 423 F. App’x 955 (11th Cir. 2011) (quoting Anderson, 477

U.S. at 248, 106 S. Ct. at 2510).3 At the summary judgment juncture, the court does not “weigh

the evidence and determine the truth of the matter,” but solely “determine[s] whether there is a

genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S. Ct. at 2511. Only disputes about the

material facts will preclude the granting of summary judgment. Id.

The movant bears the initial burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323,

106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). A party must support its assertion that there is no

genuine issue of material fact by “citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations .

. . admissions, interrogatory answers, or other materials” or by “showing that the materials cited

do not establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1). The admissibility of

evidence is subject to the same standards and rules that govern admissibility of evidence at trial.

Clemons v. Dougherty County, 684 F.2d 1365, 1369 n.5 (11th Cir. 1982) (citing Pan-Islamic Trade

Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980)).

Once the movant meets its burden under Fed. R. Civ. P. 56, the non-movant must go

beyond the pleadings and designate specific facts showing there is a genuine issue for trial.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348,

1356, 89 L. Ed. 2d 538 (1986). “A genuine issue of material fact exists when ‘the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Moore ex rel. Moore v.

Reese, 637 F.3d 1220, 1232 (11th Cir. 2011) (quoting Anderson, 477 U.S. at 248, 106 S. Ct. at

3 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they may be

cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014); see also Henry v.

Comm’r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases printed in the

Federal Appendix are cited as persuasive authority.”).

2510). The court must view the facts and draw all reasonable inferences in favor of the non-

moving party. Id. (citing Rosario v. Am. Corrective Counseling Servs., Inc., 506 F.3d 1039, 1043

(11th Cir. 2007)); Greenberg, 498 F.3d at 1265 (“We view the evidence and all factual inferences

therefrom in the light most favorable to the party opposing the motion.”). However, to avoid

summary judgment, the nonmoving party “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356

(citations omitted). Conclusory assertions, unsupported by specific facts, that are presented in

affidavits opposing the motion for summary judgment are likewise insufficient to defeat a proper

motion for summary judgment. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177,

3188, 111 L. Ed. 2d 695 (1990). “Speculation does not create a genuine issue of fact.” Cordoba

v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (citation omitted). If the evidence is merely

colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477

U.S. at 249-50, 106 S. Ct. at 2511 (emphasis in original) (citations omitted). In short, summary

judgment is proper after adequate time for discovery and upon motion against a party who fails to

make a showing that is sufficient to establish the existence of an element that is essential to that

party’s case. Celotex, 477 U.S. at 322, 106 S. Ct. at 2552.

IV. DISCUSSION AND ANALYSIS

A. Count I: Title IX

Title IX provides that no person “shall, on the basis of sex, be excluded from participation

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

activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The U.S. Supreme Court

established Title IX liability standards for student-student harassment in public schools. See Davis

v. Monroe Co. Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999). “[F]unding

recipients are properly held liable in damages only where they are deliberately indifferent to sexual

harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively

offensive that it can be said to deprive the victims of access to the educational opportunities or

benefits provided by the school.” Id. at 650, 119 S. Ct. at 1675. “After Davis, then, a court

confronted with a private damages action under Title IX must ask two questions: (1) was the school

board deliberately indifferent to sexual harassment about which it had actual knowledge; and (2)

was the sexual harassment so severe, pervasive, and objectively offensive that it can be said to

have systemically deprived the victims of access to the educational opportunities of the school?”

Hawkins v. Sarasota Cty. Sch. Bd., 322 F.3d 1279, 1285 (11th Cir. 2003).

The Court has carefully considered all the evidence properly submitted by the Parties under

Rule 56. Testimony not shown to be within the personal knowledge of the testifying witness and

contentions by the Parties not supported in the record have not been considered. See Macuba v.

Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) (noting the general rule that inadmissible hearsay

cannot be considered on a motion for summary judgment, and that the rule applies equally to

testimony given by deposition).

Plaintiffs identified incidents of alleged bullying witnessed by McKenzie’s classmates.

Unidentified students talked about McKenzie’s shoes and hair, shoved her in the hallway, and

pulled her hair. Also, Mims heard E.C. call McKenzie the N-word one time and as a result “wrote

up” E.C. and sent him to the office. Doc. 189-13, C.J. Depo., at 21, 25, 49. C.J. also heard E.C.

call McKenzie the N-word in another teacher’s class and told Mims later when he got to her class.

Id. at 49. K.M. heard unnamed “teachers” talk about students in the hallway pushing McKenzie

and talking about her hair and skin color, which the teachers told them to stop if they saw or heard.

Doc. 189-14, K.M. Depo., at 23-25. E.C. said “stuff like you’re too dark” to McKenzie and Mims

knew about E.C.’s reputation for being mean. Doc. 189-15, J.J. Depo., at 23-26. When E.C. got

in trouble by Mims for saying things about McKenzie, Mims sent him to Stewart’s office. Id. at

39-40. Also in the record is a note exchanged between McKenzie and student E.C. in class with

profanity written by each student, although more so by E.C., and entries from McKenzie’s diary.

None of this (except potentially the diary) links to or suggests suicide.

McKenzie’s diary entries do not directly link her suicide to bullying at school. Plaintiffs

supply such a connection through their expert witness’ interpretation of the diary. There is no

evidence the Plaintiffs or Defendants ever saw McKenzie’s diary before her death. Even if the

Court construes the diary as evidence of severe and pervasive harassment at school, it provides no

evidence of actual knowledge by the Defendants which is required for Title IX liability.2

Viewed in comparison to cases reviewed by the Eleventh Circuit Court, the evidence before

this Court does not establish bullying or harassment of McKenzie that was sufficiently severe or

pervasive to support Title IX liability for DCS. See, e.g. Hawkins v. Sarasota Cty. Sch. Bd., 322

F.3d 1279 (11th Cir. 2003). The Court held in Hawkins that complaints of harassment that are

“too general” are not sufficient to provide the requisite actual knowledge for Title IX liability. Id.

at 1285. Much of the testimony from McKenzie’s peers is “too general” to show actual knowledge

by the Defendants in that it does not show the identity of the “teachers” who saw alleged incidents

in the hallways, when, how many times or how frequently the incidents occurred, nor the identities

of the student harassers. The Supreme Court has cautioned that courts “must bear in mind that

2 The Plaintiffs offer a report and declaration of Bill Geiss, Ph.D., a clinical psychologist,

concluding that bullying was the likely cause of McKenzie’s suicide. The Defendants filed a

motion to strike and objections to Dr. Geiss’s testimony. The Court need not rule on the motion or

objections in order to resolve the summary judgment motion, given the Court’s conclusion that the

evidence does not show actual notice of severe and pervasive harassment or that DCS personnel

were deliberately indifferent.

schools are unlike the adult workplace and that children may regularly interact in a manner that

would be unacceptable among adults.” Davis, 526 U.S. at 651, 119 S. Ct. at 1675. It is not enough

to show that a student has been teased or called offensive names. Id. at 652, 119 S. Ct. at 1675.

“Due to their immaturity, children at various ages will invariably engage in some forms of teasing,

shoving, and name-calling that ‘target differences in gender.’ Some risk of sexual harassment is

inherent to the enterprise of public education, in particular, because public schools must educate

even the most troublesome and defiant students.” Hill v. Cundiff, 797 F.3d 948, 969 (11th Cir.

2015) (quoting Davis, 526 U.S. at 650, 119 S. Ct. at 1675). “Where the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue

for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,

1356, 89 L. Ed. 2d 538 (1986). The evidence before the Court does not raise a genuine issue of

fact that DCS had actual knowledge of severe and pervasive harassment of McKenzie by other

students.3

The note exchanged between McKenzie and E.C. contains inappropriate language directed

by each student to the other, albeit to a lesser extent by McKenzie. The Court does not find that

this note is a “single instance of sufficiently severe one-on-one harassment” that the Supreme

Court theorized could be sufficient “to have the systemic effect of denying the victim equal access

to an educational program or activity.” See Davis, 526 U.S. at 652, S. Ct. at 1676. Even

considering the note in conjunction with testimony of the other students, the evidence does not

3 The Court notes that an equal number of students who were deposed by the parties in this case,

E.T., L.W., and J.W., testified that they never saw E.C. bullying McKenzie nor saw bullying

behavior between other students. E.C., the alleged harasser, denied bullying McKenzie and

testified that McKenzie was one of his best friends in fourth grade and the note was intended by

both of them as a joke. Doc. 181-6, Depo. of E.C., at 29, 50-52. However, for the purpose of

summary judgment, the Court must construe facts in the light most favorable to the plaintiff. This

does not necessarily make them the ultimate actual facts.

show harassment sufficiently severe and pervasive to result in a systemic denial of access to

education.

The Eleventh Circuit Court has observed that “[t]he real world of school discipline is a

rough-and-tumble place where students practice newly learned vulgarities, erupt with anger, tease

and embarrass each other, share offensive notes, flirt, push and shove in the halls, grab and offend.

In the school setting, students often engage in insults, teasing, shoving, and gender-specific

conduct that is upsetting to the student subjected to it. Damages are not available for simple acts

of teasing and mere name-calling among school children even where these comments target

differences in gender.” Hawkins v. Sarasota Cty. Sch. Bd., 322 F.3d 1279, 1288 (11th Cir. 2003)

(citations omitted). The evidence before the Court shows the type of misbehavior described in

Hawkins, but, as the Court observed there, even assuming E.C.’s behavior was severe, pervasive,

and objectively offensive, it was not so severe, pervasive, and objectively offensive that it had the

systemic effect of denying McKenzie equal access to education.

Even if the evidence of harassment would support Title IX liability, it does not show that

the Defendants were deliberately indifferent. After retrieving and reading the note she saw E.C.

throw on the floor near her trash can, Mims reported it to Assistant Principal Tracy Stewart. Doc.

181-13, Mims Depo., at 125-128. Stewart contacted E.C.’s parent and assigned E.C. to in-school

suspension. Doc. 189-8, Stewart Depo., at 100-103. When Stewart called to inform Janice that

McKenzie had received a discipline referral for writing in the note, Janice reported that E.C. had

been bullying McKenzie in class. Doc. 189-11, Janice Depo., at 83-85. Stewart implemented a

plan for McKenzie to be allowed to leave class to go to Stewart’s office any time McKenzie felt

bothered or threatened in class. Id. at 85-88. Stewart told McKenzie’s teachers she was to be

allowed leave to report to Stewart as needed, and told other teachers to be alert for problems

between McKenzie and E.C. Id. at 85; Doc. 189-8, Stewart Depo., at 74-77. Stewart also followed

up with the teachers and was in McKenzie and E.C.’s classrooms frequently to observe. Doc. 189-

8, Stewart Depo., at 75-77. There is no evidence of any incidents between E.C. and McKenzie

after the date of Janice’s report to Stewart. McKenzie committed suicide over five weeks later.

Janice testified she had no reason to, and never did, follow up with Stewart to determine if the plan

for McKenzie’s safety had been effective. Because McKenzie “was happy and smiling,” Janice

“felt like things were going okay” and nothing about McKenzie’s behavior made her feel the need

to talk to Stewart. Doc. 189-11, Janice Depo., at 87-88.

The Supreme Court emphasized that school districts may be liable for deliberate

indifference to known acts of peer harassment does not mean the districts can avoid liability only

by purging their schools of peer harassment entirely, or that administrators must engage in

particular disciplinary action. Davis, 526 U.S. at 648, 119 S. Ct. at 1673. Schools “must merely

respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 649, 119 S.

Ct. at 1674. The Supreme Court also instructed in Davis that in an appropriate case, there is no

reason why courts, on a motion for summary judgment, cannot identify a school district’s response

as not clearly unreasonable as a matter of law. Id. The Court finds that this is such an appropriate

case, and that DCS’s response was not clearly unreasonable as a matter of law.

Plaintiffs contend DCS’s failure to approve an anti-bullying policy consistent with the

Jamari Terrell Williams Student Bullying Prevention Act (the “Williams Act”) enacted by the

Alabama legislature is proof of deliberate indifference to bullying. To the contrary, DCS had a

policy against bullying in place prior to the 2018-2019 school year and provided training to

teachers and students about recognizing, preventing, and responding to bullying incidents. Doc.

189-2, Kallhoff Depo., at 80, 109, 113-118, 142. Plaintiffs have not shown that the existing policy

was somehow deficient or allowed bullying. Superintendent Kallhoff testified that the Williams

Act was signed by the Governor in May 2018 and the Alabama State Department of Education

(“ALSDE”) distributed a model policy consistent with the Act to school systems in December

2018. Id. at 146. DCS voted to adopt the policy in February 2019. Id. at 177-178. Kallhoff

testified that as a small school system, DCS generally waited for model policies from ALSDE

rather than developing its own. Id. at 146, 178. The Court cannot agree with the Plaintiffs that

those circumstances demonstrate deliberate indifference by DCS to bullying in its schools, i.e.,

that the district’s actions were clearly unreasonable. The Court grants summary judgment for DCS

for Count I.

B. Count II: Title VI, Civil Rights Act of 1964 and Count IV: Substantive Due Process

Violation, 42 U.S.C. § 1983

Count II of the Complaint alleges a violation of Title VI by the Demopolis City Schools.

Count IV states a claim under 42 U.S.C. § 1983 alleging violation of the Plaintiff’s Fourteenth

Amendment Equal Protection rights by the Demopolis City Schools, Kallhoff, and Infinger. Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., prohibits discrimination based on

race, color, or national origin in programs or activities that receive federal financial assistance.

“Title VI itself provides no more protection than the equal protection clause – both provisions bar

only intentional discrimination.” Elston v. Talladega Co. Bd. of Educ., 997 F.2d 1394, 1405 n. 11

(11th Cir. 1993) (citing Alexander v. Choate, 469 U.S. 287, 293 105 S. Ct. 712, 716, 83 L. Ed. 2d

661 (1985)). “[T]he equal-protection analysis will generally apply to Title VI claims as well.”

Arrington v. Miami Dade Cty. Pub. Sch. Dist., 835 F. App’x 418, 420 (11th Cir. 2020). The Court

has analyzed the Title VI and equal protection claims together. The parties have addressed the

Title VI and equal protection claims according to Title IX standards, which the Court will do as

well. See Alexander v. Sandoval, 532 U.S. 275, 280, 121 S. Ct. 1511, 1516, 149 L. Ed 2d 517

(2001); Jackson v. Birmingham Bd. of Educ., 309 F.3d 1333, 1339 (11th Cir. 2002) (“[Title VI] is

the model for Title IX and whose language Title IX copies nearly verbatim…we therefore read

Titles VI and IX in pari materia.”).

“To establish an equal protection clause violation, a plaintiff must demonstrate that a

challenged action was motivated by an intent to discriminate.” Elston, 997 F.2d at 1406 (citations

omitted). For a supervisory official or government entity to be held liable for an alleged

constitutional deprivation, the plaintiff must show that the violation resulted from a custom or

policy of the supervisor or entity. “[A] supervisor or municipality may be liable if the alleged

discriminatory practice was sufficiently widespread so as to put the defendants on notice of the

need to act.” Arrington, 835 Fed. App’x. at 421 (quotation marks and citation omitted).

As explained in addressing the Title IX claim, the Court finds that the evidence does not

show severe and pervasive harassment or that the Defendants were deliberately indifferent to

bullying in the schools in general or to any particular incident. The Plaintiffs have not shown that

the Defendants maintained a policy or custom of ignoring bullying between students or that they

treated McKenzie differently from any similarly-situated student because of race or gender. Nor

is there evidence of a widespread pattern of bullying or harassment that would have put the

Defendants on notice that their programs and efforts to prevent bullying or harassment were

ineffective.

Plaintiffs argue that the Defendants improperly categorized E.C.’s misbehavior as

infractions of the student code of conduct other than bullying. They contend E.C.’s conduct should

have been classified as bullying and that he should have been punished more severely. The

Supreme Court cautioned that “[c]ourts should refrain from second-guessing the disciplinary

decisions made by school administrators.” Davis, 526 U.S. at 648, 119 S. Ct. at 1674. Stewart

and Infinger were experienced educators and administrators at the time of the alleged incidents.

Stewart and Infinger knew the students in their school, including McKenzie and E.C., and had the

opportunity to evaluate their attitudes, sincerity, and credibility in determining appropriate

discipline for misbehavior. The administrators imposed the punishment that was in their

professional judgment appropriate for the students’ infractions. Even if this Court would have

reached a different result, it cannot conclude that Stewart’s and Infinger’s actions were clearly

unreasonable or intentionally discriminatory. Heeding the Supreme Court’s caveat, this Court will

not second-guess the educators’ decisions in hindsight, and finds the Defendants were not

deliberately indifferent to known harassment.

Plaintiffs also contend the Defendants’ failure to adopt a policy consistent with the

Williams Act prior to the school year exhibits deliberate indifference to bullying in the Demopolis

schools. Doc. 189 at 45. Adopting policies is solely within the authority of the board of education.

See Ala. Code §§ 16-1-30, 16-11-2, 16-11-9. The Plaintiffs offer no evidence that the then-

applicable Board policy, which also attempted to prevent bullying, was somehow less effective

than the model policy written by the Alabama Department of Education under the Williams Act.

Further, it is purely speculative whether adopting a different policy sooner would have prevented

McKenzie’s suicide. Neither speculation nor conjecture is sufficient to preclude a summary

judgment. McKenzie’s classmates testified that their teachers and counselor addressed bullying

throughout the year, and the evidence clearly shows that bullying and suicide prevention were

addressed in teachers’ training at the beginning of the year and periodically during the year. Doc.

189-2, Kallhoff Depo., at 81, 110, 114, 115, 117, 119, 120, 143. Plaintiffs have not shown that

the training programs DCS had in place were ineffective to a point of deliberate indifference, nor

have they identified any authority to establish that failure to adopt a specific anti-bullying policy

constitutes deliberate indifference. The Court grants summary judgment for DCS, Kallhoff and

Infinger for Counts’ II and IV.

C. Counts III, VIII, IX, X and XI, 42 U.S.C. § 1983, Substantive Due Process Violations

Counts III, VIII, IX, X, and XI of the Complaint state claims under 42 U.S.C. § 1983

against DCS and one or more individual Defendants for alleged violation of substantive due

process rights. Each count alleges the Defendants breached a duty to protect McKenzie from

bullying and harassment by other students and failed to train teachers and administrators

adequately. Because there is no evidence of any constitutional violation, the individual Defendants

are entitled to qualified immunity and all Defendants warrant summary judgment in their favor for

all substantive due process claims.

Section 1 of the Fourteenth Amendment of the United States Constitution provides that

“[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law."

U.S. CONST., amend. XIV, § 1. “The substantive component of the Due Process Clause protects

those rights that are ‘fundamental,’ that is, rights that are ‘implicit in the concept of ordered

liberty.’” McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (quoting Palko v. Connecticut,

302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937), overruled on other grounds by Benton v.

Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969)). “[N]othing in the language of

the Due Process Clause itself requires the State to protect the life, liberty, and property of its

citizens against invasion by private actors. The Clause is phrased as a limitation on the State's

power to act, not as a guarantee of certain minimum levels of safety and security.” DeShaney v.

Winnebago County Dept. of Social Servs., 489 U.S. 189, 195, 109 S. Ct. 998, 1003, 103 L. Ed. 2d

249 (1988). Put simply, there are only limited circumstances in which government actors can be

held liable for substantive due process violations.

In Wyke v. Polk County Sch. Bd., 129 F.3d 560, 569 (11th Cir. 1997) the Eleventh Circuit

affirmed a judgment as a matter of law for the school board for a § 1983 substantive due process

claim arising from a student’s suicide at his home. The claims by the student’s mother included

that the board failed to train its employees in suicide prevention and intervention. The Eleventh

Circuit held that before addressing whether the school board could be liable for a failure to train

employees, it first had to determine whether those employees violated the plaintiff’s constitutional

rights by failing to discharge some constitutional duty owed to the deceased student. Id. at 569.

The court found that because the school personnel had no duty to protect the student, the plaintiff

“failed to establish a violation of any constitutional right.” So, too, is the case here. Because there

is no constitutional right to protection from third parties in a non-custodial setting, the Plaintiffs

have not shown a violation.

The Plaintiffs argue that the Defendants acted arbitrarily in failing to adopt a policy

consistent with the Jamari Williams Act before McKenzie’s death, and that the Defendants’

conduct was conscience-shocking in a constitutional sense in failing to train employees adequately

on the dangers of bullying. The Eleventh Circuit has held in a school-setting case that even

deliberate indifference, without more, does not rise to the conscience-shocking level required for

a constitutional violation. Davis v. Carter, 555 F.3d 979, 984 (11th Cir. 2009).

The Court cannot agree, however, that the adoption of the policy of by DCS in February

2019 rather than prior to the school year was arbitrary. Superintendent Kallhoff testified that the

Alabama State Department of Education provided a model policy to be used by local school

systems, and that in those circumstances, DCS, as a small school system, generally waited for the

model policy rather than developing its own. Doc. 189-2, Kallhoff Depo., at 146). The timing of

DCS’s adoption of the policy therefore was not arbitrary. The 11th Circuit has found conscience-

shocking behavior in a school setting in only two cases, both involving corporal punishment. See

Kirkland v. Greene Cnty. Bd. of Educ., 347 F.3d 903 (11th Cir. 2003); Neal v. Fulton Cnty. Bd. of

Educ., 229 F.3d 1069 (11th Cir. 2000)). In each of those cases the perpetrators who committed

conscience-shocking acts were state actors. Here, McKenzie’s alleged harasser was a fellow

student and her death was self-inflicted. The absence of affirmative intentional conduct by the

Defendants distinguishes this case from Neal and Kirkland and allegations that the Board failed to

adopt a specific policy or train employees adequately and failed to prevent bullying does not shock

the conscience in a constitutional sense under the Eleventh Circuit standard. The Plaintiffs have

failed to show that the Defendants deprived McKenzie of a right secured by the United States

Constitution. In light of the absence of a constitutional violation, the Plaintiffs’ argument that DCS

failed to train employees adequately on the dangers of bullying cannot revive their substantive due

process claim. “Section 1983 liability only attaches where the failure to train amounted to

deliberate indifference to the rights of persons with whom the [state actors] come into contact.

Analysis of a state entity's custom or policy is unnecessary, however, when no constitutional

violation has occurred.” Garczynski v. Bradshaw, 573 F.3d 1158, 1170 (11th Cir. 2009) (quotation

marks and citation omitted). Even if the Defendants failed to protect McKenzie from bullying by

other students, the failure did not violate the Due Process Clause. Consequently, the adequacy or

inadequacy of training provided to DCS employees on bullying and suicide is immaterial.

The individual Defendants also have raised the defense of qualified immunity to the § 1983

claims. Qualified immunity protects government officials performing discretionary functions as

long as the officials’ conduct “does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). The purpose of qualified immunity is to protect public

officials “from undue interference with their duties and from potentially disabling threats of

liability.” Elder v. Holloway, 510 U.S. 510, 514, 114 S. Ct. 1019, 1022, 127 L. Ed. 2d 344 (1994).

Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the

law.” Mullenix v. Luna, 577 U.S. 7, 12, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015) (citing

Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986)).

Defendants who claim qualified immunity must show they acted “within the scope of

[their] discretionary authority when the allegedly wrongful acts occurred.” Lee v. Ferraro, 284

F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.

1991)). Whether defendants acted within their discretionary authority depends on whether they

were performing legitimate job-related functions at the time of the challenged conduct, through

means that were within their power to use. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir.

2004). The question is not whether the defendants were authorized to commit an allegedly

unlawful act, but whether the conduct served a proper purpose and was within, or reasonably

related to, the outer perimeter of the officials’ discretionary duties. See Herbert Int’l, Inc. v. James,

157 F.3d 1271, 1282 (11th Cir. 1998). Once that is established, the burden shifts to the plaintiff to

“show that qualified immunity is not appropriate.” Lee, 284 F.3d at 1194.

“To overcome qualified immunity, the plaintiff must satisfy a two prong test; he must show

that: (1) the defendant violated a constitutional right, and (2) this right was clearly established at

the time of the alleged violation.” Holloman, 370 F.3d at 1264. It is the plaintiff’s burden to prove

both prongs of this test. Id. A plaintiff need not identify a case directly on point, but “existing

precedent must have placed the statutory or constitutional question beyond debate.” White v.

Pauly, --- U.S. ---, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 (2017) (citation omitted). Clearly

established law should not be defined “at a high level of generality.” Ashcroft v. al–Kidd, 563

U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011). “As [the Supreme] Court explained decades ago, the

clearly established law must be ‘particularized’ to the facts of the case.” White, --- U.S. at ---, 137

S. Ct. at 552. The “pre-existing law must dictate, that is, truly compel (not just suggest or allow

or raise a question about), the conclusion for every like-situated reasonable government agent that

what defendant is doing violates federal law in the circumstances.” Gonzalez v. Lee Cty. Hous.

Auth., 161 F.3d 1290, 1295 (11th Cir. 1998) (emphasis in original, citations omitted). This

standard does not require that the “very action in question has previously been held unlawful,” but

“the unlawfulness must be apparent” under then-existing law. Anderson v. Creighton, 483 U.S.

635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 524 (1987). Plaintiffs cite no case, in particular a

case involving elementary school educators, which clearly establishes that the Defendants here

should have acted differently.

Plaintiffs allege violation of Fourteenth Amendment rights under color of law. The

Defendants have shown to the Court’s satisfaction that at all relevant times, each of them was

exercising judgment in performing official duties as a DCS employee, within the scope of his or

her authority. Doc. 181-20, Kallhoff Depo.; Doc. 181-19, Infinger Depo.; Doc. 181-21, Mims

Depo.; Doc. 181-22, Stewart Depo. Plaintiffs therefore have the burden of proving each Defendant

violated a constitutional right that was clearly established at the time.

As discussed, the evidence does not establish that the Defendants violated any

constitutional right. Neither DCS nor any individual Defendant had a duty to protect McKenzie

from third parties. The individual Defendants had no authority or duty to train DCS employees,

and the Plaintiffs have identified no evidence McKenzie’s suicide resulted from any lack of

training. The Eleventh Circuit Court has held that where a “plaintiff has failed to show a violation

of due process . . . it necessarily follows that the defendants are entitled to summary judgment on

qualified immunity grounds.” Hartley v. Parnell, 193 F. 3d 1263, 1261 (11th Cir. 1999) (quoting

Cottrell v. Caldwell, 85 F. 3d 1480, 1491-92 (11th Cir. 1996)).

As discussed previously, the evidence does not show deliberate indifference by the

Defendants. The students in her classes testified Mims did not tolerate talking in class, was strict,

and kept her class quiet. Mims was never told about any issues between McKenzie and E.C. Doc.

189-1, Mims Depo., at 135. If Mims saw E.C. talking in class or disrupting others, she moved him

to sit beside her desk where she could watch him more closely, and at other times reprimanded

him in the hall or referred him to an administrator for discipline. Id. at 55, 56, 61, 89-90. When

Janice told Stewart following the note incident that E.C. was bothering McKenzie, Stewart

responded by instructing McKenzie’s teachers to be alert for any difficulties between the students

and she told Janice and McKenzie’s teachers that if McKenzie felt harassed or threatened in any

way, she could leave class to go to Stewart’s office to report it. That plan was acceptable to Janice

and Jasmine and they never felt a need to discuss it again with Stewart. Neither Janice nor Jasmine

ever talked to Infinger or Kallhoff or any member of the Demopolis City Board of Education about

any student bullying McKenzie at school. In addressing the deliberate indifference standard, the

Eleventh Circuit has noted that many good faith but ineffective responses might satisfy school

officials’ obligation in responding to suspected or reported harassment. The Court explained “the

relevant inquiry is not whether the measures taken were effective in stopping discrimination, but

whether the school [officials’] actions amounted to deliberate indifference.” Sauls v. Pierce Co.

School Dist., 399 F.3d 1279, 1285 (11th Cir. 2005) (addressing deliberate indifference standard

with respect to teacher-student harassment). Here, there is no evidence of any incident between

McKenzie and E.C. or any other student after the date E.C. and McKenzie exchanged the note.

Janice acknowledged she never felt that there was a need for her to follow up with Stewart because

McKenzie was happy and smiling and Janice believed the problem had been handled. Doc. 189-

11, Janice Depo. at 86-88. Even if the record established a constitutional violation, the Defendants

are nevertheless entitled to qualified immunity because they were not deliberately indifferent.

The claim against Defendants Kallhoff and Infinger for failure to train or supervise

personnel also fails because they had no duty to train subordinates. The federal courts in all three

districts in Alabama have held that a supervisor may not be sued for negligent supervision of a

subordinate. In Ott v. City of Mobile, 169 F. Supp. 2d 1301, 1315 (S.D. Ala. 2001), addressing a

state law negligent supervision claim, the court found that “negligent supervision or training

requires as an element the existence of a master-servant relationship,” and “ [a] supervisor is not

the master of a subordinate, nor is the subordinate the servant of the supervisor; rather, as Alabama

cases make plain, the status of ‘master’ is restricted to one who is actually or essentially the

employer of the servant.” See also Hand v. Univ. of Ala. Bd. of Trustees, 304 F. Supp. 3d 1173,

1182 (N.D. Ala. 2018) (“Alabama law does not recognize a cause of action against a supervisor

for that supervisor’s negligent training or supervision of a subordinate.”); Ghioroaie-Panait v.

Rolle, Civ. Act. No. 3:17-CV-00698-ALB-WC, 2020 WL 130892, at *5, 2020 U.S. Dist. LEXIS

4285, *12 (M.D. Ala. Jan. 10, 2020) (“Whether a plaintiff may bring a claim against an employee

for negligent supervision and training of a subordinate . . .is a question that has been frequently

and unanimously answered by federal courts in Alabama with a resounding ‘no.’”).

Janice, McKenzie’s grandmother with whom she lived, testified she had no reason to

believe McKenzie might commit suicide even immediately before her death. Doc. 189-11, Janice

Depo., at 47. No witness who has given testimony in this case had any reason to believe McKenzie

might commit suicide or otherwise harm herself. Even in an involuntary custodial setting “[u]nder

controlling case precedent, § 1983 requires that the defendant have ‘notice of the suicidal tendency

of the individual whose rights are at issue in order to be held liable for the suicide of that

individual.’” Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cty. Fla., 402 F.3d 1092, 1105 (11th

Cir. 2005) (quoting Tittle v. Jefferson County Comm'n, 10 F.3d 1535, 1539 (11th Cir. 1994) (en

banc) (emphasis in original)). McKenzie was not in the Defendants’ custody or under their

supervision at the time of her death. The undisputed facts do not establish a substantive due

process violation by the Defendants and they are entitled to a summary judgment in their favor.

D. Count V: Alabama Code § 6-5-391 Wrongful Death, Demopolis City Schools

Count V alleges a claim for wrongful death under Ala. Code § 6-5-391, against DCS. The

Court finds that this claim is barred by state immunity. The Alabama Supreme Court explained

State immunity for public school boards as follows:

“Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from

lawsuits. This absolute immunity extends to arms or agencies of the state.” Ex parte

Tuscaloosa County, 796 So.2d 1100, 1103 (Ala. 2000).

“For purposes of § 14 immunity, county boards of education are

considered agencies of the State. Louviere v. Mobile County Bd. of

Educ., 670 So.2d 873, 877 (Ala. 1995) (‘County boards of

education, as local agencies of the State, enjoy [§ 14] immunity.’).

Thus, this Court has held that county boards of education are

immune from tort actions. See Brown v. Covington County Bd. of

Educ., 524 So.2d 623, 625 (Ala. 1988); Hutt v. Etowah County Bd.

of Educ., 454 So.2d 973, 974 (Ala. 1984).”

Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102–03 (Ala. 2008).

Ex parte Hale Cty. Bd. of Educ., 14 So.3d 844, 848 (Ala. 2009). “City boards of education are

local agencies of the State; therefore, they enjoy constitutional immunity from tort actions.” Ex

parte Phenix City Bd. of Educ., 67 So.3d 56, 60 (Ala. 2011); see also Parton v. Talladega City Bd.

of Educ., Civ. Act. No. 2:06-CV-00706-VEH, 2006 WL 8437055, at *8, 2006 U.S. Dist. LEXIS

114403, at *19-20 (N.D. Ala. Aug. 1, 2006) (“Under Alabama law, the Talladega City Board of

Education is, therefore, an agency of the state. Accordingly, Plaintiffs’ state law claims against the

Talladega City Board of Education are barred by sovereign immunity.”). Because DCS is a state

government agency and the Alabama Constitution bars any claim against state agencies under

Alabama law, DCS is entitled to a summary judgment for Count V.

E. Count VI and Count VII: Alabama Code § 6-5-391, Wrongful Death Claims Against

Individual Defendants

Count VI alleges a claim under Alabama law against Infinger, Stewart and Mims for

wrongful death allegedly arising from negligent, reckless or wanton breach of a duty to report,

investigate and take action in response to bullying and harassment. Count VII claims all individual

Defendants negligently, recklessly, or wantonly failed to act in response to bullying of McKenzie.

McKenzie committed suicide in her grandmother’s home where no Defendant was present. These

claims are barred by state-agent immunity. Further, as a matter of law, McKenzie’s intentional act

of killing herself broke any causal connection between acts or omissions of the Defendants and

McKenzie’s death.

“Pursuant to Article I, § 14 of the Alabama Constitution, ‘the State of Alabama shall never

be made a defendant in any court of law or equity.’ The Alabama Supreme Court has extended

this sovereign immunity to municipal boards of education, as local agencies of the state, and to a

person who acts as an agent of such a board if the act was committed while that person was

performing certain types of duties that are ‘discretionary’ or require the exercise of judgment.”

Worthington v. Elmore Cty. Bd. of Educ., 160 F. App’x 877, 883 (11th Cir. 2005). The Alabama

Supreme Court held:

A state agent shall be immune from civil liability when the conduct made the basis

of the claims against the agent is based upon the agent’s

. . .

(2) exercising his or her judgment in . . . (d) hiring, firing, transferring, assigning,

or supervising personnel; or

. . .

(5) exercising judgment in the discharge of duties imposed by statute, rule, or

regulation in releasing prisoners, counseling or releasing persons of unsound mind,

or educating students.

Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000) (emphasis in original). “Generally, state agents

are afforded immunity from civil liability when the conduct made the basis of the claim is based

on the exercise of judgment in supervising and educating students.” Ex parte Nall, 879 So.2d 541,

544 (Ala. 2003). “Educating students includes not only classroom teaching, but also supervising

and educating students in all aspects of the educational process.” Ex parte Trottman, 965 So.2d

780, 783 (Ala. 2007); see also Worthington v. Elmore Cty. Bd. of Educ., 160 F. App’x 877, 883

(11th Cir. 2005) (“Historically, the Alabama Supreme Court has held repeatedly that the

supervision of students is an act involving discretion and judgment, and that persons engaged in

such supervision are entitled to immunity.” Addressing a claim that a public school administrator

failed to formulate and enforce proper procedures, the Alabama Supreme Court noted, “a state

agent is entitled to immunity when formulating policies.” Ex parte Trottman, 965 So.2d at 786

(quoting Ex parte Cranman, 792 So.2d at 405). The court also noted that while at times it may

question the wisdom of school officials’ actions, “hindsight . . . is 20/20, and we will not second-

guess their decision.” Id. at 787. The incidents between students alleged in this lawsuit occurred

at U.S. Jones Elementary School, during school hours. The claims against the individual

Defendants relate to their performance of official duties for supervising and educating students

and supervising personnel. Because each Defendant’s actions were within the categories of

conduct described in Ex parte Cranman and involved exercise of judgment in performing those

duties, they are shielded by State-agent immunity unless the evidence shows that a recognized

exception to immunity is applicable.

Immunity for school officials may be denied only upon the Plaintiffs’ proof that the

officials acted willfully, maliciously, fraudulently, in bad faith, beyond their authority or under a

mistaken interpretation of the law. Ex parte Nall, 879 So.2d at 546. Plaintiffs have not identified

any evidence in this case to establish an applicable exception. Neither Defendants Mims, Stewart

or Infinger ever saw E.C. or any other student bully McKenzie. Doc. 181-21, Mims Depo.; Doc.

181-22, Stewart Depo.; Doc. 181-19, Infinger Depo. Superintendent Kallhoff did not have any

interactions with McKenzie. On occasions when she saw E.C. talking to McKenzie or others

during class, Ms. Mims moved him to another seat, took him into the hall to admonish him, or

referred him to the school office for further discipline. When Mims found the note with profane

language between E.C. and McKenzie, she reported it to Assistant Principal Stewart. Stewart

investigated and imposed disciplinary measures for each student that were, in her judgment and

discretion, appropriate under the circumstances. She notified each student’s parent and gave E.C.

additional punishment of in-school suspension. Infinger was not at the school the day E.C. and

McKenzie were disciplined for the note and Stewart handled that incident. Doc. 189-3, Infinger

Depo., at 138-139. Infinger had never received a report of bullying by E.C. Id. at 202. The

Defendants’ decisions and actions were clearly within the categories of conduct described in Ex

Parte Cranman and are protected by state-agent immunity and there is no evidence that any

exception to immunity is applicable under the circumstances of this case. The individual

Defendants are therefore entitled to a summary judgment in their favor.

Further it is undisputed that McKenzie’s death occurred by suicide. No witness in this

case, including Janice, testified he or she had reason to believe on December 3, 2018, or at any

time before then that McKenzie might harm herself. The Alabama Supreme Court has held that

“suicide and/or deliberate and intentional self-destruction is unforeseeable as a matter of law, and

civil liability will not be imposed upon a defendant for a decedent’s suicide.” Gilmore v. Shell Oil

Co., 613 So.2d 1272, 1278 (Ala. 1993). This further relieves the Defendants of liability for her

death because McKenzie, tragically by her own hands, acted intentionally and deliberately in a

manner that was calculated to result in her own death.

An unforeseen agency, which breaks the chain of causation that otherwise might have

linked a defendant’s alleged actions to a plaintiff's injury, has been referred to as an “intervening

efficient cause.” “In order for conduct to be considered an intervening efficient cause, it must (1)

occur after the defendant’s negligent act, (2) be unforeseeable to the defendant at the time he acts,

and (3) be sufficient to be the sole cause-in-fact of the plaintiff’s injury.” Gilmore, 613 So.2d at

1275 (citing General Motors Corp. v. Edwards, 482 So.2d 1176, 1194-95 (Ala. 1985)).

McKenzie’s death by suicide occurred after any alleged act or inaction of the Defendants. The

suicide was unforeseeable to the Defendants just as it was to Janice, and McKenzie’s intentional

act of taking her own life was the legal sole cause-in-fact of her death.

The Alabama Supreme Court later recognized two additional factors in analyzing suicide

as an intervening cause: “the plaintiff’s conduct (1) is so highly extraordinary or unexpected that

it can be said to fall without the realm of reasonable foreseeability as a matter of law; and (2) is

more than mere contributory negligence and is of a higher culpability level than the defendant's

negligence.” Gilmore, 613 So.2d at 1275 (quotation marks and citation omitted, emphasis in

original). The undisputed facts establish these elements as well. As the Alabama Supreme Court

noted, suicide is unforeseeable as a matter of law, and a nine-year-old child intentionally taking

her own life is extraordinarily unexpected and unforeseeable, and is far more than contributory

negligence. The Court finds that the Defendants’ alleged acts were not the proximate cause of

McKenzie’s death and they are entitled to a judgment in their favor as a matter of law.

The Alabama Supreme Court has recognized only two exceptions to the general rule that

suicide is an efficient intervening cause that precludes the defendants’ liability: (1) where the

relationship between a decedent and a defendant creates an expectation that the defendant will take

reasonable steps to protect the decedent from deliberate and self-destructive injury, or (2) where

the defendant created an uncontrollable impulse in another which led to suicide. Prill v. Marrone,

23 So.3d 1, 7 (Ala. 2009). The evidence before the Court does not support either of these

exceptions.

Defendants had no relationship with McKenzie that could create an expectation they would

protect her from self-destructive injury while she was at home with her grandmother, who also

testified she had no reason to believe McKenzie might harm herself. The facts also cannot support

any finding of “uncontrollable impulse,” which “consists of a delirium, frenzy or rage, during

which the deceased commits suicide without conscious volition to produce death.” Id. at 8

(citation and internal quotations omitted). Janice testified McKenzie attended school on the date

of her death and arrived home as usual, around 3:45 p.m. Doc. 189-11, Janice’s Depo., at 45. She

seemed “a little quieter than usual but had a snack and began her homework.” Id. at 46. Janice

could not recall anything different about her behavior and had absolutely no reason to believe she

might do something to harm herself. Id. at 46-47. Janice’s testimony – the only other person

present at the time of McKenzie’s death – does not show any delirium, frenzy or rage, and the

circumstances of McKenzie’s death support only a conclusion that for unknowable reasons, she

consciously intended to take her own life. McKenzie’s suicide therefore breaks any causal

connection between alleged acts of the Defendants and her death, and the Defendants are entitled

to a judgment as a matter of law.

The Alabama Supreme Court’s recent opinion in Rondini v. Bunn does not alter this result.

In Rondini, the U.S. District Court for the Northern District of Alabama certified to the Alabama

Supreme Court the question whether suicide was an intervening cause breaking the chain of

causation stemming from the defendant’s intentional tort. Rondini v. Bunn, 434 F. Supp. 3d 1266

(N.D. Ala. 2020). In response, the Alabama Supreme Court stated:

The question certified by the federal court concerns an alleged sexual assault. To

answer that question, we need declare only that the suicide of a person who is the

victim of one specific intentional tort – sexual assault – is not a superseding cause

that will absolve the alleged assailant of liability as a matter of law. Whether other

intentional torts stemming from a defendant’s extreme and outrageous conduct that

causes severe emotional distress to the victim might also support a wrongful-death

action after a suicide is a question for another day.

Rondini v. Bunn, Civ. Act. No. 1190439, 2021 WL 1939171, at *5, 2021 Ala. LEXIS 39, at *13

(Ala. May 7, 2021). The Defendants here did not assault McKenzie. The very narrow additional

exception recognized in Rondini is inapplicable. As no exception previously recognized by the

Alabama Supreme Court applies to the circumstances of this case, the Defendants cannot be held

liable for McKenzie’s suicide or any alleged resulting damages to the Plaintiffs. The Court

declines the Plaintiffs’ suggestion that it should expand the Rondini exception beyond the specific

facts of that case. The Defendants’ Motion for Summary Judgment is granted for Counts VI and

VII.

V. CONCLUSION

For the foregoing reasons, and based on the authorities cited, the Defendants’ Motion for

Summary Judgment (Doc. 180) is GRANTED as to all Defendants for all claims. The Court will

issue a final judgment separately.

DONE and ORDERED this the 22nd day of March, 2022.

s/Terry F. Moorer

TERRY F. MOORER

UNITED STATES DISTRICT JUDGE