Petition for Writ of Certiorari — Luttrell v. Wilson

Supreme Court, ULB.

FILED

(\) 001215 JAN 292001

OFFIC: 7

No.

In The

Supreme Court of the United States

\ TONY LUTTRELL,

Petitioner,

VS.

VICKIE WILSON and TAMMY PRICE,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Hon. WINTER R. Hurr

Law Offices OF JOHN G. PRATHER

P.O. Box 616

Somerset, KY 42502-0616

Telephone: (606) 679-1626

Counsel of Record for Petitioner

ae ened

ow

QUESTIONS PRESENTED FOR REVIEW

(1) Whether a public school teacher accused of sex-

ual contact with students can be deemed both a “state

actor” and “acting under color of law” for purposes of

imposition of Section 1983 liability when said teacher, if

he acted as alleged, would not only be acting wholly

beyond the scope of his duties but instead in violation of

his duties;

(2) Whether students’ claims of sexual harassment

which would not be actionable under Title VII can nev-

ertheless constitute a violation of a constitutional right to

bodily integrity actionable under Section 1983;

(3) Whether the consideration of the admission of

evidence under Federal Rule of Evidence 415 requires

balancing under Federal Rules of Evidence 403 and 404.

li

PARTIES TO THE PROCEEDING

A list of all parties to this proceeding is contained in

the caption to this Petition. In the action in the United

States Court of Appeals for the Sixth Circuit, there were

two additional Defendants-Appellees, namely, David

Webb, individually and in his official capacity as Superin-

tendent of the Edmonson County Board of Education,

and David Stice, in his individual and official capacity

(Principal of the Edmonson County High School at the

relevant time). However, David Webb and David Stice are

not necessary parties in this proceeding. There are no

parent companies or non-wholly-owned subsidiaries of

the Petitioner.

iii

TABLE OF CONTENTS

Page

Questions Presented For Review................... i

PE DO Wee PUMUOUNE cc cccccscccccccccescasece ii

i cic 6 dacs dedhw ees eaeeanes ves iii

cnn. as s punadheceaded duaetebe sue iv

ET IED Vib s cd eccexiknesineshiniabeuvseeaes 1

EE Ue SOD nn obs tc eeacndesseacdéeesen 1

Constitutional And Statutory Provisions Involved In

EE ev Ge cheb bh eAe edd one 66h 4 bbe keene eds 2

i rE ick cans audeedwkueesvaawes 3

Basis For Federal Jurisdiction In The Court Of First

Ua atu Oe eer c Rocce kes ae ouce ean oie ate 7

Reasons For Allowance Of The Writ Of Certiorari.. 7

I. Luttrell could not have acted “under color of

II. Claims which would not be actionable under

Title VII as sexual harassment cannot consti-

tute a deprivation of constitutional dimen-

eet care ce ONe cea ee eras sults ba 15

Ill. The admission of “other bad acts” evidence

from non-parties was improper; the Federal

Rules of Evidence must be interpretca to

require balancing among the Rules.......... 17

CORGIIION «oc ccees a NEE A a IE 20

Appendix

Opinion of the United States Court of Appeals for

Gee MED SMa cecccccscccsccccccacccessease App. 1

Judgment of the United States District Court,

Western District of Kentucky, Bowling Green

DOVEEOR. . occ ccccccncess eee ccccccccccccccccce App. 29

Order Denying Petition for Rehearing En Banc ... App. 31

iv

TABLE OF AUTHORITIES

Cases

Baker v. McCollan, 433 U.S. 137, 99 S.Ct. 2689, 61

Bh Ff Fi. PPerrervrrrirrrerir rere

Barney v. City of New York, 193 U.S. 430, 24 S.Ct.

SOL, GB LB. FOF CIGD oc cscs cccssccsncescss

Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88

Lee OES CHR 6 cc ches cccesccaccsssncessans

Doe v. Claiborne County, Tenn., 103 F.3d 495 (6th

CE WE din ketaeedccdenssscanckeacnnas 13, 14,

Doe v. Taylor Independent School Dist., 15 F.3d 443

— fe | rrr rrr ry Te 9, 10, 12,

D.T. by M.T. v. Independent School District No. 16,

894 F.2d 1176 (10th Cir. 1990)..................

Easley v. American Greetings Corporation, 158 F.3d

DFO COG GOR, BRR coc ccvcccccccccsicvcdcssaces

Gebser v. Lago Vista Independent School District, 524

U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277

i Serer rrrerrr rr er re re reer Tre 11,

Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82

LE SO CRUD cc ccencdavacdccsescisadteses

Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51

ee» Bie eyerrrerrr rr errr TT rer re reer

Lillard v. Shelby County Board of Education, 76 F.3d

es Wl Gee . io cae

Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 102

S.Ct. 2744, 73 L.Ed.2d 482 (1982)...............

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1996) ....

Vv

TABLE OF AUTHORITIES - Continued

Page

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68

Ce Ge Cetin wins tenncsduncdaensseeenniest 7, 11

Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46

Ee ew Caer even Kiko dns bh eee hh 8

Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031,

OD Ce Se Ce + kook tak hea Nba 8, 10

Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88

Ral, SF GEER a cchdcsaccntodncsticvissbbauadveas 10

United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031,

ee a Ost Re rn rrr er? 8, 10

U.S. v. Enjady, 134 F.3d 1427 (10th Cir. 1998)... 18, 19, 20

U.S. v. Guardia, 135 F.3d 1326 (10th Cir. 1998)....... 18

United States v. Lanier, 73 F.3d 1380 (6th Cir. 1996).... 13

United States v. LeCompte, 131 F.3d 767 (8th Cir.

MFT Five ccciccsnbnedesnanckddthskebbaskoestehens 18

United States v. Sumner, 119 F.3d 658 (8th Cir. 1997) .... 18

STATUTES

- Bik Tae Es | perenne rr yer re rere rr: 2

USL. © IB: ods k kcteescassie henna 7

Bik tom & Pewrrrreererr errr ries passim

Federal Rule of Evidence 403................. 3, 18, 19

Federal Rule of Evidence 404...............22eeeeeee 3

Federal Rule of Evidence 404(b)....................4. 18

Federal Rule of Evidence 413................2eeeeeee 2

vi

TABLE OF AUTHORITIES - Continued

Page

Federal Rule of Evidence 414 .......... 6... .- ese enue 2

Federal Rule of Evidence 415..............- 45455: 2, 18

CONSTITUTIONAL PROVISIONS

Fifth Amendment to the United States Constitu-

Mem. ccccccceccsetseséeeeseadeeeuseeenuendeneeeéses 2

Fourteenth Amendment to the United States Con-

Bitar , oo ccccccccececessececeectecesseesseeseseue 2

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Tony Luttrell, respectfully requests

that a Writ of Certiorari be issued to review the Judgment

of the United States Court of Appeals for the Sixth Circuit

in this case.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Sixth Circuit, filed on September 13, 2000, has not

been recommended for full-text publication, ard is repro-

duced herein in the Appendix at pages 1-28. The Judg-

ment upon jury verdict of the United States District

Court, Western District of Kentucky, Bowling Green Divi-

sion, entered on August 5, 1998, is reproduced herein in

the Appendix at pages 29-30. The Order of the United

States Court of Appeals for the Sixth Circuit denying the

Petition for Rehearing En Banc, filed on October 30, 2000,

is reproduced herein in the Appendix at pages 31-32.

— +

STATEMENT OF JURISDICTION

The Opinion of the United States Court of Appeals

for the Sixth Circuit was filed on September 13, 2000, as

set forth in the Appendix at pages 1-28. The Petition for

Rehearing by the United States Court of Appeals for the

Sixth Circuit was denied by Order entered on October 30,

2000, as set forth in the Appendix at pages 31-32.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

S

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THIS CASE

The Fifth Amendment to the United States Constitu-

tion provides, in relevant part, that no person shall “be

deprived of life, liberty, or property, without due process

of law...”

The Fourteenth Amendment to the United States

Constitution provides in relevant part “ . . . nor shall any

state deprive any person of life, liberty, or property, with-

out due process of law .. . ”. 42 U.S.C. § 1983 provides in

relevant part, “Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia subjects, or

causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the depri-

vation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress... ”

Federal Rule of Evidence 415, 28 U.S.C., governs

evidence of similar acts in civil cases concerning sexual

assault or child molestation, and provides, in relevant

part, that “ . . . evidence of that party’s commission of

another offense or offenses of sexual assault or child

molestation is admissible and may be considered as pro-

vided in Rule 413 and Rule 414 of these rules . . . this rule

should not be construed to limit the admission or consid-

eration of evidence under any other rule.” Federal Rule of

Evidence 404 provides, in relevant part, that “Evidence of

other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action and

conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence

of mistake or accident .. . ”. Federal Rule of Evidence 403

provides that, “Although relevant, evidence may be

excluded if its probative value is substantially out-

weighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by consideration of

undue delay, waste of time, or needless presentation of

cumulative evidence.”

¢

STATEMENT OF THE CASE

The Petitioner, Tony Luttrell (“Luttrell”), was a pub-

lic high school teacher in Edmonson County, Kentucky.

He had taught for a number of years without incident. In

October of 1993, the Respondent Tammy Price (“Price”)

accused Luttrell of touching her in the vaginal area when

she ran into him while exiting the classroom. Price was

taken out of Luttrell’s class, and had no further contact of

any kind with him.

In February of 1994, the Respondent Vickie Wilson

(“Wilson”) accused Luttrell of numerous acts of sexual

contact and misconduct, which reportedly began in the

spring of 1993 and continued through December of 1993.

Wilson filed an action asserting claims, inter alia, pur-

suant to section 1983 in April of 1994, and was joined

thereafter by Price.

At trial, Price testified that Mr. Luttrell was standing

in the classroom doorway with his hands behind his back

as she was leaving his classroom during class change.

Price testified that she asked Luttrell to move, and that he

looked around and smiled at her, at which time one of his

hands came back and brushed her in her vaginal area for

a few seconds. She admitted she did not return to Lut-

trell’s classroom after that day, and had neither verbal

nor physical contact with Luttrell thereafter. Evidence

was presented on behalf of Luttrell at trial demonstrating

that, given Price’s height and her own testimony as to the

distance between herself and Luttrell when the contact

occurred, the contact could not have been in her vaginal

area. Three eyewitnesses to the incident all testified that

the contact between Luttrell and Price appeared to be

accidental. Price admitted having poor grades in Lut-

trell’s class, and admitted being angry with Luttrell. One

witness testified that she heard Price say she was mad at

Luttrell, and wanted to get rid of him.

Wilson claimed forcible sexual contact on two occa-

sions in Luttrell’s classroom during the lunch break, and

another off campus incident when she allowed Mr. Lut-

trell to place his finger in her vagina and expose his penis

to her. Wilson admitted that she had a “crush” on Luttrell

beginning in 1992-3 school year, and that she spent a lot

of time around Mr. Luttrell even after the occasions when

she testified he forcibly had sexual contact with her. She

admitted going on a field trip with his class (optional for

her), touching him, hitting him, joking with him, and

stopping her vehicle on a country road at night to talk to

him on at least two occasions. She admitted that she

wanted to marry him. Wilson was 17 years old when the

alleged sexual contact with Luttrell first occurred.

Wilson’s testimony regarding the off-campus incident

differed markedly from the testimony of another eyewit-

ness, Becky Sanders Ray. Both Wilson and Ray admitted

lying under oath on various occasions when relaying this

story prior to trial.

Over strenuous and repeated objections, Wilson and

Price were allowed to present testimony from a number

of other students regarding claims that Luttrell touched

and patted students on the breast and buttock area

(through clothing), and comments made by Luttrell

which could be construed as sexual innuendo. Evidence

was presented that most of these other witnesses had

grade and/or discipline problems with Luttrell. None of

these witnesses had made any contemporaneous reports

or documentation of their claims of improper comments

_and conduct by Luttrell. One witness even admitted that

she had given incriminating statements about Luttrell to

the Respondents and school officials because of pressure

from other students and because she was mad at Luttrell

over classroom discipline.

Luttrell presented evidence from many students who

were otherwise situated to have seen or heard any such

improper comments and conduct by Luttrell towards the

Respondents and their witnesses, yet who testified they

neither saw nor heard anything which could be consid-

ered sexual in nature. Numerous teachers testified that

they neither saw nor heard anything unusual from Lut-

trell’s classroom during the lunch period, casting doubt

on Wilson’s claim of screaming and crying during those

incidents. Further, teachers testified they did not notice

either Price or Wilson being upset after alleged incidents

as claimed. Wilson’s testimony that she had been locked

inside of Luttrell’s classroom was shown to be false by

use of a videotape of the classroom door, demonstrating

that the classroom door can always be opened from the

inside of the classroom; it cannot lock anyone inside the

classroom.

The evidence at trial indicated that Wilson deliber-

ately sought out the company of Mr. Luttrell, both at

school and outside of school. She came to his home. She

went over to talk to him whenever she saw him out in the

community. She was not a student in any of his classes;

her contact with him at school was due to her own

voluntary action. Many students and teachers testified as

to her pestering conduct around him. The Respondent

Wilson admitted she went to great lengths to spend time

around Mr. Luttrell, not only at school, but at his home

and in the community as well. Respondent Wilson was at

least 17 years old at all relevant times. Price was 14 years

old at the time of the one and only incident at issue

involving her. Luttrell consistently and vehemently

denied all claims of misconduct, but in light of the jury

verdict this Petition addresses only the legal issues rather

than factual findings.

BASIS FOR FEDERAL JURISDICTION

IN THE COURT OF FIRST INSTANCE

The initial action was brought in the United States

District Court for the Western District of Kentucky pur-

suant to 28 U.S.C. § 1343.

REASONS FOR ALLOWANCE

OF THE WRIT OF CERTIORARI

I. LUTTRELL COULD NOT HAVE ACTED “UNDER

COLOR OF LAW”

The decision of the United States Court of Appeals

for the Sixth Circuit in this case conflicts with clear hold-

ings of this Court, the Tenth Circuit, and of the Sixth

Circuit itself concerning when a person acts “under color

of law” for purposes of imposition of liability under

section 1983. This Court has long made the appropriate

distinction between constitutional deprivations action-

able under 42 U.S.C. § 1983, and torts which merely

happen to be committed by state officials or state

employees. E.g. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.

1908, 68 L.Ed.2d 420 (1981); Hudson v. Palmer, 468 U.S.

517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Daniels v.

Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662

(1986). However, the Fifth Circuit in particular, and now

the Sixth Circuit, however, have gone astray by misapply-

ing the “real nexus” test, which was developed in the

context of analysis of vicarious or supervisory liability

(and which has since been supplanted by the “deliberate

iii |

indifference” standard in any event), to hold an individ-

ual state employee liable for torts clearly outside of the

scope of the employee’s authorized duties. Apx. p. 17-18.

The origin of the “real nexus” theory appears to be

this Court’s decision in Rizzo v. Goode, 423 U.S. 362, 96

S.Ct. 598, 46 L.Ed.2d 561 (1976). Rizzo involved allega-

tions of police misconduct. This Court held that there was

no showing of an “affirmative link between the occur-

rence of the various incidents of police misconduct and

the adoption of any plan or policy — express or otherwise

- showing their authorization or approval of such mis-

conduct.” Id. at p. 371. In that decision, like most of the

subsequent decisions which have applied the “real

nexus” theory, the actual focus was on whether the

municipal entity could be liable; the individuals who had

allegedly committed the acts in question had not even

been named as parties therein.

The Tenth Circuit later referenced Rizzo in the context

of a section 1983 action against school officials for failing

to properly investigate the background of a teacher/

coach hired by the school district, who sexually molested

students during a summer basketball camp. D.T. by M.T.

v. Independent School District No. 16, 894 F.2d 1176, 1187

(10th Cir. 1990). The Tenth Circuit correctly understood

and held that a state employee’s conduct in the ambit of

his personal pursuits are not acts “under color of state

law.” Id., p. 1186. In addition to Rizzo, the Tenth Circuit

relied upon other precedent from this Court, such as

United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85

L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 65

S.Ct. 1031, 89 L.Ed. 1495 (1945); Lugar v. Edmonson Oil Co.,

Inc., 457 U.S. 922, 936-37, 102 S.Ct. 2744, 73 L.Ed.2d 482

(1982). Id.

Unfortunately, the Fifth Circuit erroneously applied

the “real nexus” test to assume that a teacher who

engages in sexual conduct with students is a state actor

acting under color of law. Doe v. Taylor Independent School

District, 15 F.3d 443, 452, fn. 4 (5th Cir. 1994). In Doe, the

“real nexus” test from D.T. was discussed in a footnote in

dicta; the teacher was not even a party in that Fifth Circuit

Case. In Doe, the Fifth Circuit misread and misapplied the

“real nexus” test, by focusing on the nexus between the

tortfeasor’s own duties and the tortfeasor’s own conduct,

instead of on the nexus between the state’s policy and the

conduct of the tortfeasor.}

1 The Respondents may argue, as did the Fifth Circuit

majority, that the D.T. case is distinguishable because the sexual

contact occurred only off campus, during the summer vacation.

However, that is a distinction without a difference for purposes

of application of the proper legal analysis under 42 U.S.C.

§ 1983. The analysis must be whether there is a direct causal

connection between the official authorization or policy and

the acts complained of, not whether there is merely some nexus

because the state employee, who is not a policymaker, took

advantage in some way of his public position to commit a tort.

The Respondent Wilson, being age 17, was not even subject to

compulsory attendance laws of the Commonwealth of

Kentucky, and she clearly chose to place herself in Mr. Luttrell’s

path. As to the Respondent Price, she was obviously free to

change out of Mr. Luttrell’s classroom, which she in fact did.

Thus, Mr. Luttrell was no more facilitated by his state

employment as a teacher to commit any acts of sexual

misconduct than he would have been if he had committed the

torts in a local grocery store, restaurant, or any other locale

where females might be found.

Baa aad

10

However, several Judges of the Fifth Circuit in Doe

did understand the distinction between torts committed

by state employees and constitutional deprivations car-

ried out “under color of state law” but their excellent

dissenting opinions have been largely overlooked. See

Doe, supra, pp. 465-489, esp. pp. 468 (Judge Garwood,

joined by Judges Jones, Smith, Barksdale, Garza and

DeMoss), 475-77 (Judge Jones, joined by Judges Garwood,

Smith, Barksdale, Garza and DeMoss); 480-9 (Judge

Garza). Judge Garza’s dissent specifically analyzes the

“color of law” requisite of liability under 42 U.S.C. § 1983.

Judge Garza considered not only the cases holding that

the conduct in issue was not “under color of law”

because the conduct was in direct contravention of state

law (Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 501,

48 L.Ed. 737 (1904); Snowden v. Hughes, 321 U.S-1, 64 S.Ct.

397, 88 L.Ed. 497 (1944) but also considered cases from

this Court in which state action was found through a

misuse of power (E.g., Classic, supra, and Screws, supra).

ere? Se

a

A TC ES ly re

Judge Garza relied also on Baker v. McCollan, 443 U.S.

137, 146, 99 S.Ct. 2689, 2696, 61 L.Ed. 2nd 433 (1979):

“Even intentional torts do not become constitutional vio-

lations merely because the tortfeasors are state officials.”

Id., page 486. As Judge Garza pointed out, if a teacher

who uses his position as a teacher “to press his sexual

desires” upon a student could be found to have acted

under color of law, “then every intentional tort commit-

ted by a state official, which is, essentially, what [the

teacher’s] conduct amounts to, would give rise to a Sec-

tion 1983 claim.” Judge Garza noted that this Court,

however, has explicitly rejected such a broad reading of

11

section 1983. E.g., Parratt, supra; Hudson, supra; Daniels,

supra.?

Judge Garza’s dissent clearly points out the flaw of

the majority’s reasoning: “Although Stroud [the teacher]

unquestionably abused his position as a teacher, he did

not abuse the authority granted to him by the state — the

state did not grant him any authority, as a teacher or

otherwise, to engage in sexual relations with or sexually

fondle minor students.” Id., page 488 (emphasis added).

The majority of the Fifth Circuit, however, and now the

Sixth Circuit, missed this key distinction, instead finding

a teacher’s conduct to be “under color of law” not

because of any connection between the grant of author-

ity/duties imposed by the state on the tortfeasor, but

merely because of a perceived (but see footnote 1, supra)

connection between the tortfeasor’s conduct and his job

situs. Mere facilitation in the commission of a tort due

to circumstances of public employment has never been

the standard for imposition of liability on an individual

under section 1983, and there is no legal basis for extend-

ing section 1983 jurisprudence in this fashion.

2 Another anomaly results from the improper use of the

“real nexus” standard. An employer is typically not liable for

any acts of an employee or agent beyond the scope of

employment. Certainly, sexual abuse by a teacher of students is

beyond the scope of employment, and absent “deliberate

indifference” the school district cannot be held liable. Gebser v.

Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct.

1989, 141 L.Ed.2d 277 (1998). Hence, if there is no liability of the

public employer for a deprivation under color of law because

the acts are beyond the scope of employment, then how can the

employee have acted under color of law?

12

Liability of an individual under 42 U.S.C. § 1983 can

only be premised upon the use or abuse of power granted

by authority of the state. Thus, while a teacher may be

liable under section 1983 for excessive or abusive admin-

istration of corporal punishment, e.g., Ingraham v. Wright,

430 U.S. 651; 97 S.Ct. 1401; 51 L.Ed.2d 711 (1977), or other

type of discipline as noted by the majority in Doe, p. 451,

there is not now, never has been, and never will be any

grant of state authority to teachers for any type of sexual

conduct or contact with students, and therefore no

teacher could exceed or abuse such authority.

oP ee, ee

were -

The Fifth Circuit and now the Sixth Circuit have gone

astray. While the statement that “[i]f the Constitution

protects a schoolchild against being tied to a chair or

against arbitrary paddlings, then surely the Constitution

protects a schoolchild from physical sexual abuse .. . ”

(Doe, p. 451) has some obvious appeal, nevertheless, the |

Fifth Circuit lost sight of the fact that, regardless of

whether a constitutional deprivation occurred, it is not

actionable under section 1983 unless it occurred “under

color of law.”> Liability of an individual under 42 U.S.C.

§ 1983 cannot be premised upon a nexus between an

3 Because the “real nexus” test has typically been discussed

in the context of the public employer’s liability for the conduct

of its agents, the analysis has been blurred because the public

employer might nevertheless be responsible for guarding against

prohibited conduct by policy and procedure, and the public

employer’s failure to do so may be deemed an abuse or misuse

of its duties under color of law by not having in place or not

properly implementing protective policies and procedures.

However, the “real nexus” test has been supplanted by the

“deliberate indifference” standard in considering the public

employer’s liability for constitutional violations. E.g., Gebser v.

Lago Vista Independent School Dist., supra.

Yo ete ANNE o#

ee eee ee P

13

employee’s position and opportunity or accessability to

commit a tort; rather, liability of an individual can only

be premised upon the use or abuse of power granted by

authority of the state.

| In fact, the decision of the United States Court of

Appeals for the Sixth Circuit in this case conflicts in

principle with its own decision in the prior case of Doe v.

Claiborne County, Tenn., 103 F.3d 495 (6th Cir. 1996). There,

the Court correctly stated:

“[A] person does not act under color of state law

solely by virtue of [his] relationship to the

state,” instead, liability depends upon the

nature of his conduct . . . (citations omit-

ted) ... We conclude that to state a claim for a

failure to act when the alleged wrongdoer is

not a supervisory governmental official, a

plaintiff must separately establish the “color

of law” requirement of section 1983 by identi-

fying some cognizable duty that state or fed-

eral law imposes upon the alleged “enactor.”

In the absence of a duty, there is no section

1983 liability because the failure to act cannot

be said to have occurred under color of law.

Id., page 512 (emphasis added).

* Judge Norris, in partial dissent in Claiborne, noted “I

question the wisdom of the majority in placing this Court on

record as saying that commission of a state law sexual assault

crime amounts to a constitutional tort under 42 U.S.C. § 1983.

Furthermore, that holding runs contrary to this Court’s

discussion of the question in United States v. Lanier, 73 F.3d 1380,

1388-89 (6th Cir. 1996) (en banc). Id. at p. 516. Judge Norris’

change of heart in the panel decision in this case is both

unexplained and inexplicable.

ae oo eee a

14

Certainly, no teacher has any “duty” under state or

federal law to have any type of sexual contact with stu-

dents. Thus, the Sixth Circuit ignored its own statement

in Claiborne to instead follow a misconstrued version of

the “real nexus” test. The Respondents argued, and the

Sixth Circuit accepted the argument, that Mr. Luttrell

could be liable under section 1983 because he was facili-

tated in the commission of his torts by virtue of his

position as a teacher, and consequent proximity to stu-

dents. Besides the fact that, at least with the respect to

Respondent Wilson, Luttrell had ample contact with her

by her own choice off of the school premises, the fact

remains that Mr. Luttrell’s duties as a teacher gave him

no power or authority to act in a sexual manner towards

students. There is no legal nor logical basis to conclude

that if a state employee’s conduct is merely “facilitated”

by the state employment, then the conduct is “under

color of law.” That theory simply contrives to meet the

“color of law” requisite of section 1983 liability without

considering whether any power or authority granted by

the state was in any way relevant to the constitutional

violation alleged.

=o

The flaw of the Sixth Circuit’s reasoning becomes

even clearer in light of developments in the “deliberate

indifference” standard. This Court has explicitly held

many times that there is no respondeat superior liability

under section 1983. E.g., Gebser, supra. If facilitation was

an appropriate basis for section 1983 liability, merely by

finding that a state employee was “facilitated” in the

commission of the tort by virtue of attributes of his

position, or indeed, deliberate violation of his job duties,

ial

15

then the state supervisor/employer would always be lia-

ble also, because but for the supervisor /employer putting

that employee in that position, there would be no facilita-

tion. This is obviously not the analysis actually employed

by the Courts, and it is wholly improper to use such dicta

to hold the individual public employee liable and yet not

use the same analysis in consideration of the public

employer’s liability.

Il. CLAIMS WHICH WOULD NOT BE ACTIONABLE

UNDER TITLE VII AS SEXUAL HARASSMENT

CANNOT CONSTITUTE A DEPRIVATION OF

CONSTITUTIONAL DIMENSIONS

A further flaw in this case (and in Doe v. Taylor

Independent, supra, and also in Doe v. Claiborne County,

supra) is the apparently automatic assumption that any

sexual contact or relationship between a teacher and stu-

dent results in a violation of the student’s constitutional

right of bodily integrity. This assumption is unwarranted,

particularly in the circumstances involving Respondent

Wilson, a 17-year-old who admittedly threw herself at her

teacher, on whom she had a crush. A sexual relationship

between an adult male and a 17-year-old girl, while per-

haps deemed immoral, is not per se against the law. Under

the admitted facts of this case, Wilson could not have

stated a claim against Luttrell for sexual harassment

under Title VII, because she never gave him any indica-

tion that his conduct towards her was unwelcome. Meri-

tor Savings Bank v. Vinson, 477 U.S. 57 (1996).

The Petitioner is not aware of any other reported

decisions finding a deprivation of a constitutional right of

16

“bodily integrity” under facts similar to Wilson’s claim;

the other decisions involve students below the age of

consent. E.g., Doe v. Claiborne County, Tenn., supra.5 The

dissenting Judges in Doe v. Taylor Independent, supra, like-

wise questioned the assumption that a 15-year-old could

not engage in consensual sexual relations without a

deprivation of a constitutional right. Doe v. Taylor Indepen-

dent, pp. 467-8. It is certainly questionable on the facts of

this case. The Sixth Circuit in this decision attempted to

evade the issue by claiming there was sufficient evidence

for the jury to find Wilson did not consent, but the panel

wholly failed to analyze whether there was a constitu-

tional deprivation at all in light of her age and own

conduct. Apx. pp. 18-19.

The panel decision similarly failed to specifically

address the argument of Luttrell that Respondent

Wilson’s single claim of improper touching, on which the

evidence was equivocal at best, could amount as a matter

of law to a constitutional deprivation. Rather, the panel

simply skimmed over that argument, citing Lillard v.

Shelby County Board of Education, 76 F.3d 716 (6th Cir.

1996) without distinguishing it from the facts of this case.

Apx. p. 19. Again, there is no reported decision known by

Luttrell holding that a single contact between teacher and

student, which occurred by the student’s own admission

at least in part because she ran into the teacher, and

> In that case, the student was 14 years old when she began

what otherwise appears to have been a consensual relationship

with a teacher at her high school. The teacher pled to statutory

rape. There is an interesting postscript: the student and teacher

have since married.

ee

17

which several eyewitnesses testified appeared to be acci-

dental, amounts to a constitutional violation. Price’s

claims should have been dismissed.®

Ill. THE ADMISSION OF “OTHER BAD ACTS” EVI-

DENCE FROM NON-PARTIES WAS IMPROPER;

THE FEDERAL RULES OF EVIDENCE MUST BE

INTERPRETED TO REQUIRE BALANCING

AMONG THE RULES

The panel disposed of Luttrell’s arguments concern-

ing the improper admission of irrelevant and/or unduly

prejudicial evidence in a single paragraph. Apx. p. 22.

The panel simply states that they “find no abuse of dis-

cretion in the Court’s decision and affirm for the reasons

stated by the District Court.” Although the panel decision

does not specify, presumably, the panel can only be refer-

ring to the District Court’s pre-trial Memorandum Opin-

ion and Order which primarily relied upon two Eighth

Circuit cases from 1997 to the exclusion of other relevant

precedent, and otherwise misapplied the law and Federal

Rules of Evidence. The Federal Rules of Evidence must be

6 The panel agreed that the standard which should have

been applied by the District Court is whether the conduct

“shocks the conscience.” Apx. pp. 19-20. The panel failed to

consider, however, whether the single incident as alleged by

Price, who admitted that she ran into Luttrell from behind, and

in light of the uniform eyewitness testimony that it appeared to

be accidental, could be conduct which “shocks the conscience.”

In light of the District Court’s failure to properly instruct on that

standard, and in light of the nature of the sole incident claimed

by Price, this error could hardly be said to be “harmless.”

18

read and reconciled together; the decision at issue failed

to balance the appropriate considerations thereunder.

The District Court relied heavily upon the Eighth

Circuit decisions of United States v. LeCompte, 131 F.3d 767

(8th Cir. 1997) and United States v. Sumner, 119 F.3d 658

(8th Cir. 1997) in its FRE 403 analysis. Those decisions,

however, incorrectly imply that there is a presumption in

favor of admission; that FRE 415 effectively overrides

FRE 403.

The District Court similarly determined that FRE 415

supercedes the FRE 404(b) prohibition of evidence of

other crimes, wrongs, or acts “to prove the character of a

person in order to show action and conformity there-

with.” Both the District Court and the Panel, however,

failed to consider more recent decisions from the Tenth

Circuit as well as from the Eighth Circuit which are more

on point herein, and which indicate that no one rule of

evidence overrides another.

The District Court and the panel ignored the FRE 403

balancing test set forth in U.S. v. Enjady, 134 F.3d 1427,

1433 (10th Cir. 1998). Further, while the District Court

cited U.S. v. Guardia, 135 F.3d 1326 (10th Cir. 1998), the

Court ignored its holding: the Tenth Circuit in fact

upheld the exclusion of additional claims of misconduct,

noting that the “admission of the testimony would trans-

form the trial of two incidents into the trial of six inci-

dents . . . the subtle factual distinctions among these

incidents would make it difficult for the jury to separate

the evidence of the uncharged conduct from the charged

conduct.” Id., page 1332. Similarly, in a 1998 case, the

Eighth Circuit also upheld the exclusion of additional

19

evidence of sexual harassment, on the basis that the pro-

bative value was outweighed by the potential prejudice.

Easley v. American Greetings Corporation, 158 F.3d 974 (8th

Cir. 1990).

Neither the District Court nor the panel addressed

any of these decisions, nor did either the District Court or

the panel address the considerations set forth in Enjady,

which are as follows:

Rule 403 balancing in the sexual assault context

requires the Court to consider: (1) how clearly

the prior act has been proved; (2) how proba-

tive the evidence is of the material fact it is

admitted to prove; (3) how seriously disputed

the material fact is; and (4) whether the govern-

ment can avail itself of any less prejudicial evi-

dence. When analyzing the probative dangers,

a Court considers: (1) how likely it is such

evidence will contribute to an improperly-

based jury verdict; (2) the extent to which such

evidence will distract the jury from the central

issues of the trial; and (3) how time consuming

it will be to prove the prior conduct. [citing M.

Sheft, Federal Rule of Evidence 413: A Dan-

gerous New Frontier, 33 Am.Crim. L.Rev. 57, 59

n. 16 (1995), emphasis added].

In this case, the District Court failed to consider the first

three factors, with the result that all three of the antici-

pated dangers indeed resulted.

The Sixth Circuit panel has merely affirmed in cur-

sory fashion, without any analysis, the admission of

highly prejudicial and non-probative evidence of non-

parties. The Petitioner respectfully submits that guidance

from this Court is needed, to affirm the reasoning of

| :

20

Enjady and require the analysis as set forth above. The

Petitioner Luttrell respectfully submits that the balancing

required among the Federal Rules of Evidence should

have resulted in the exclusion of the “other bad acts”

evidence, and very likely an entirely different outcome at

trial.

Sd

CONCLUSION

Wherefore, for all the foregoing reasons, it is respect-

fully submitted that this Petition for a Writ of Certiorari

be granted. =

Respectfully submitted,

Winter R. Hurr

Law OfFICES OF JOHN G. PRATHER

P. O. Box 616

Somerset, Kentucky 42502-0616

(606) 679-1626

Attorney for Petitioner

App. 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Nos. 99-5459, 99-5460, 99-5461, 99-5462

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ON APPEAL FROM THE

UNITED STATES

DISTRICT COURT FOR

THE WESTERN DISTRICT

OF KENTUCKY

OPINION

(Filed Sep. 13, 2000)

NOT RECOMMENDED

FOR FULL-TEXT

PUBLICATION

Sixth Circuit Rule 28(g)

limits citation to specific

situations. Please see Rule

28(g) before citing in a

proceeding in a court in

the Sixth Circuit. If cited,

a copy must be served on

other parties and the

Court.

VICKIE WILSON;

TAMMY PRICE,

Plaintiffs-Appellants /

Cross-Appellees,

V.

DAVID WEBB,

Individually and in his

Official Capacity as

Superintendent of the

Edmonson County Board

of Education; DAVID

STICE, in his Individual

and Official Capacity,

Defendants-Appellees,

TONY LUTTRELL,

Individually and in his

Official Capacity as a

teacher in the

Edmonson County

School System,

Defendant-

Cross-Appellant.

This notice is to be

prominently displayed if

this decision is

reproduced.

eee ee ee (ee ee ese es es we a We

BEFORE: KRUPANSKY, NORRIS, and SUHR-

HEINRICH, Circuit Judges.

ALAN E. NORRIS, Circuit Judge. Plaintiffs Tammy

Price and Vickie Wilson were subjected to sexual miscon-

duct by defendant Tony Luttrell, a teacher at their school.

App. 2

They brought suit against Luttrell, as well as against the

school’s principal, defendant David Stice, and the

county’s school superintendent, defendant David Webb.

Plaintiffs alleged violations of Title IX (20 U.S.C. § 1681 et

seq.), 42 U.S.C. § 1983, and various state laws. The district

court granted summary judgment to Webb and Stice.

Plaintiffs appeal that decision. A jury found Luttrell liable

for § 1983 violations and several state law violations.

Luttrell appeals the court’s denial of a new trial or judg-

ment as a matter of law. For the reasons described below,

we affirm the judgment of the district court.

I.

In the spring of 1993, Edmonson County High School |

principal David Stice became aware of a rumor that Tony |

Luttrell was having an affair with his teacher’s assistant,

student Renee Alexander. Stice investigated the matter by

speaking to various individuals, including Alexander’s

father. Mr. Alexander and his wife did their own investi-

gation, after which Mr. Alexander told Stice that he

thought it was purely a rumor. Mr. Alexander and his

wife asked that Renee be removed from Luttrell’s class,

allegedly in order to quell the rumor. Stice did not docu-

ment his investigation in writing and never reported the

matter to David Webb, the Edmonson County Schools

superintendent. Later in 1993, Webb learned of the rumor

and asked Stice what he knew and whether he had inves-

tigated it. Webb also spoke with Mr. Alexander, who

indicated that the matter had been satisfactorily resolved.

In August 1993, Webb was made aware of a question-

able conversation between Luttrell and two high school

Em F

App. 3

girls (plaintiff Wilson and Becky Sanders Ray) at a foot-

ball game. A school staff member reported a conversation

she overheard having something to do with married men

and Luttrell saying “you’re not interested; are you.” After

having the staff member repeat her report to Stice, Webb

charged Stice with the responsibility of a complete and

thorough investigation. Stice interviewed every individ-

ual involved, found nothing improper, met with the staff

member to share his results, and reported to Webb. Webb

and Stice assumed there was no reason for further inves-

tigation and made no formal report. Nonetheless, Webb

had a follow-up meeting a few days later with Luttrell

and Stice at which Webb suggested that Luttrell not

become involved in any way, or socialize, with the stu-

dents.

In October 1993, Luttrell touched Price’s vaginal area

for a few seconds as she was trying to move past where

he was standing in the doorway of his classroom. There

were several witnesses to the contact between Price and

Luttrell. Two students indicated that they saw the con-

tact, although in subsequent questioning by school offi-

cials they responded affirmatively to a question as to

whether it was possible that the contact could have been

accidental. A teacher testified that Price walked into Lut-

trell from behind as she was walking out of the room,

looking at another student.

After a few days, Price reported the incident to Dr.

Dale Gray, a school counselor. Gray immediately spoke to

Stice. Stice reported the incident to Webb, who instructed

him to begin an investigation by taking statements from

any individuals who might be able to contribute. Stice

did not take affirmative action to seek information from

App. 4

students whose names did not arise in the course of the

investigation and, to his knowledge, neither did Webb.

Webb immediately sought legal advice from the school

board’s attorney. He also contacted the Cabinet for

Human Resources to report the alleged abuse. Price was

removed from Luttrell’s class.

Within hours of learning of Price’s allegations, Webb

met with Luttrell and his wife. Webb told Luttrell to stay

away from the school during the investigation. During

the investigation, other students also reported incidents

of inappropriate touching by Luttrell. Webb believed

there had been contact with Price, but found the results of

the investigation inconclusive. In a letter to the Education

Professional Standards Board (“EPSB”), Webb indicated

that he planned to give only a private reprimand because

the statements of students were inconsistent and Luttrell

consistently denied any inappropriate conduct. Webb

removed Luttrell’s teaching assistants and told Luttrell to

improve his classroom environment, including keeping

his door open at all times and not being close to his

students. After Luttrell returned to the classroom, Stice

monitored him by walking by his room, stopping in the

doorway, and occasionally going in and sitting for a few

minutes. Sometime after the investigation had been com-

pleted, Stice knew that Luttrell or members of his family

had been contacting students. Stice asserted that he did

nothing about such contact because his jurisdiction

stopped at the schoolhouse door. He did not document

this knowledge or report it to the police.

When Luttrell testified at trial, he attempted to dem-

onstrate that he could not have touched Price where she

said she had been touched. He did this by standing with

—

*-—

App. 5

his back to a yardstick on which had been marked the

approximate height of where Price said she had been

touched, presumably at the distance from the yardstick

that Price had indicated. From the transcript, it appears

that Luttrell was unable to touch the yardstick.

Vickie Wilson testified that in April 1993 Luttrell,

alone with her in his classroom, made sexual remarks,

touched her breasts, forced her to the floor, removed her

pants and underwear, pushed his finger into her vagina

several times, and inserted his penis into her vagina. She

also testified that he commented to her that his window

was covered with black paper, that even if she said any-

thing no one would believe her, and that his door was

locked from the outside so he was the only one who

could open it from the inside. Wilson said she felt respon-

sible because she had a crush on Luttrell. She also indi-

cated that she felt degraded, humiliated, and

embarrassed.

In May 1993, Wilson was again alone with Luttrell in

his classroom. According to Wilson, Luttrell made sexual

remarks, exposed himself, forced Wilson to the floor, and

inserted his penis in her mouth. Wilson bit him and he

eventually stopped. She continued to talk to Luttrell after

the incident and still felt responsible.

Wilson also testified that on a school trip, while

having lunch on a bus, she was sitting with Ray and

laughing. When Luttrell asked what was so funny and

received no answer, he walked back to the girls, shoved

them down into the seat, and snapped the back of

Wilson’s bra.

App. 6

In December 1993, Wilson said she was driving with

Ray in the evening when Luttrell drove by and signaled

for them to pull into a gas station. Luttrell walked over to

their car, first going to Ray’s side. According to Wilson,

Luttrell raised Ray’s shirt and bra and touched her

breasts, and then put his hand in her shorts or pants and

put his finger in her vagina. He then exposed his penis to

Ray. Luttrell walked to Wilscn’s side of the car, making

sexual comments to Wilson. He raised her shirt and bra

and touched her breasts, then inserted his hand in her

underwear and pushed his finger in her vagina. He also

exposed his penis to Wilson.

Ray testified that Luttrell exposed himself; she undid

her pants and let him touch her; and he brushed his hand

against her breasts. Ray did not look to see if he did the

same with Wilson, but she assumed he did. On cross-

examination, Ray admitted that she had lied at a deposi-

tion when she said she and Wilson had not conferred

before grand jury proceedings. Ray also testified that she

had told people Wilson was not telling the truth about

Luttrell. Luttrell also presented two witnesses suggesting

that it would have been difficult for him to have sexual

contact with Wilson in his room during lunch.

Wilson reported some incidents with Luttrell at a

school board meeting in February 1994. The day after the

meeting, Webb directed Stice to investigate the allega-

tions and contacted Social Services, which began its own

investigation, as did the Kentucky police. A day later,

Webb told Luttrell that he would need to stay away from

the school during the investigation. In his investigation,

Stice interviewed Wilson and asked her for the names of

App. 7

any students who could confirm her claims. He inter-

viewed people named by Wilson, anyone they named,

and people who came forward voluntarily.

At the February board meeting, another driver for

the school, Paula Blanton, indicated that she had seen

Luttrell touching female students on their buttocks as

they entered and exited Luttrell’s bus. Luttrell’s wife

gave Webb evidence that Blanton had been convicted of

shoplifting. Webb indicated to Blanton that the conviction

might be used against her; according to Webb, he was

trying to reassure Blanton by bringing up the conviction.

Blanton said Webb told her that, if she continued with her

allegations, her past would be brought out against her.

During the investigation of Wilson’s allegations, nei-

ther Stice nor Stacey Raymer, a school counselor partici-

pating in the investigation, affirmatively sought

information from students or teachers whose names did

not arise in the investigation. Webb indicated that he did

not direct Stice or Raymer to go out and only get state-

ments from people out to get Luttrell or people who were

supportive of him. Instead, he indicated that he felt they

needed to ensure a fair and open investigation and take

statements from anyone who had an opinion or anything

to say regarding the ongoing investigation. Webb indi-

cated that the investigation may have been too open in

allowing statements in support-of Luttrell, but that he

thought that said something about Luttrell’s character at

the time. Webb and Stice did not reprimand two district

employees alleged to have taken actions that may have

intimidated witnesses.

App. 8

In March 1994, Don Van Natta of Social Services sent

a letter to Webb indicating that the Luttrell investigation

showed that allegations were substantiated with respect

to sexual abuse, emotional abuse, and caretaker neglect.

The letter also indicated that investigation of a number of

allegations was not yet completed. In July 1994, Webb

began proceedings to terminate Luttrell’s teaching con-

tract and immediately suspended him without pay. In the

same time period, Webb, Stice and Raymer discussed

problems they had with the police and Social Services.

Webb asked Raymer to draft a statement of concerns

about the other agencies investigating Luttrell. Stice and

Raymer both wrote statements criticizing the agencies

and referring to Luttrell’s swinging his arms.

A tribunal hearing was held in September 1994

regarding Luttrell’s termination. Wilson did not allege

rape or forced oral sex until this hearing. Webb reported

those allegations to Social Services and the EPSB shortly

thereafter. At the hearing, Webb selected the witnesses to

testify. Many witnesses testified, including Van Natta,

Detective Bill Jenkins (who had been investigating Lut-

trell), Stice, Price, Ray, Wilson, and Webb. At the hearing

Webb noted that statements of students alleging inap-

propriate touching on the bus were dated, the girls had

not made timely reports to school officials, and the girls

continued to take Luttrell’s bus. Webb also indicated to

the hearing tribunal that he found it strange that the bus

students could not provide any witnesses. The record in

this case indicates that at least one student stated that she

witnessed an inappropriate touching of another student.

Webb also told the tribunal that Luttrell slings his hands

around a lot and indicated that he had some doubt about

App. 9

whether Blanton could see something happening in Lut-

trell’s bus from her bus, 150 feet away. The tribunal

decided not to terminate Luttrell’s contract, but sus-

pended him without pay for the remainder of the 1993-94

school year and the entire 1994-95 school year.

An Edmonson County grand jury also considered

charges against Luttrell. During his testimony before the

grand jury, Webb said that he thought Wilson would not

have made her allegations if Luttrell’s house had not

been vandalized, an act of which Wilson was accused and

for which she was lectured by Luttrell’s family at around

the time she came forward with her allegations.

As a result of the incidents described above, plaintiffs

filed suit. Defendants Webb and Stice filed motions for

summary judgment. The court granted the motion with

respect to the § 1983 claim brought against defendants in

their individual capacities, finding that Webb and Stice

did not demonstrate deliberate indifference towards

plaintiffs. After allowing defendants to file a motion for

summary judgment on the state law claims following the

deadline for dispositive motions, the court granted the

motion. The court found that plaintiffs were not entitled

to prevail on their intentional infliction of emotional dis-

tress claim because they failed to respond to defendants’

arguments. Addressing the merits, the court indicated

that none of the conduct attributed to defendants was

outrageous and intolerable. As for Price’s negligence

claim, the court found that defendants were not on notice

that Luttrell was sexually harassing or abusing students

and adequately reacted to previous incidents. To the

extent Wilson alleged incidents that occurred after Price

made her allegations, the court found that defendants

\

App. 10

took appropriate actions following Price’s report and

could not have reasonably anticipated any injuries to

Wilson. The court also granted defendants’ motion on

plaintiffs’ § 1983 official capacity claim, finding that Webb

was the final decisionmaker, and there was no showing

that the district had a policy or custom reflecting deliber-

ate indifference. The court granted summary judgment to

defendants on plaintiffs’ Title IX claims, holding that no

reasonable fact-finder could disagree that the school had

responded adequately and effectively to negate liability.

Finally, the court awarded costs to Webb and Stice.

Luttrell filed counterclaims against Wilson, alleging

wrongful civil proceedings, invasion of privacy, inten-

tional infliction of emotional distress, and abuse of pro-

cess. The court partially granted Wilson’s motion for

summary judgment with respect to the wrongful civil

proceedings and invasion of privacy claims. The court

denied her motion with respect to the intentional inflic-

tion of emotional distress and abuse of process claims.

After trial, the court amended the judgment to reflect that

the remaining counterclaims were dismissed.

Luttrell filed a motion to dismiss the complaint for

failure to state a claim. The court denied the motion,

finding that the-acts alleged were clothed in public

authority and stature and that schoolchildren have a pro-

tected liberty interest in their bodily integrity that is

violated by physical sexual abuse by a school employee.

Luttrell later moved to dismiss Price for failing to comply

with the statute of limitations because she did not remove

her next friend from the case within one year after she

reached the age of majority. The court denied this motion.

eainaeiatenseaiaiaaiaaiiiaianiaiail

App. 11

Before trial, Luttrell filed a motion in limine to

exclude certain evidence, which was granted in part and

denied in part. The court declined to exclude evidence

from non-plaintiffs of misconduct by Luttrell. The court

applied Federal Rule of Evidence 415 to allegations of

physical misconduct and found that all factors were satis-

fied in plaintiffs’ favor. The court applied Rules 404(b)

and 403 to allegations of non-physical misconduct and

determined that the evidence was admissible.

The jury found in favor of plaintiffs, concluding that

Luttrell violated their rights under § 1983 and committed

the tort of third-degree sexual abuse. The jury also found

that Luttrell committed the tort of indecent exposure

against Wilson and committed battery upon Price. The

jury awarded Wilson $51,000 in compensatory and

$100,000 in punitive damages. Price was awarded

$100,000 in compensatory and $200,000 in punitive dam-

ages.

After trial, the court denied Luttrell’s motion for

judgment or for a new trial. The court explained its

decision only with respect to the jury selection. In the

jury selection process, juror 21 indicated that she had a

15-year-old daughter and was hostile toward child sexual

abusers. She had also been subjected to physical sexual

and non-sexual abuse. She was apparently emotionally

distressed while disclosing this information, but indi-

cated that she could be impartial. The court declined to

strike her for cause. Luttrell asserts that he had to use a

peremptory strike for Juror 21. The court found no error

in refusing to dismiss Juror 21 for cause because the juror

said she could fairly consider Luttrell’s liability based

upon the evidence. Another juror who was seated, Juror

App. 12

12, allegedly failed to acknowledge being a co-worker of

the father of a witness. The court indicated that Luttrell

failed to meet his burden of showing he deserved a new

trial because Juror 12 may have worked with a witness’

father.

—_—

The court granted plaintiffs’ motion for attorneys’

fees and costs, but substantially reduced the amount

requested because of deficiencies in documentation and

the lack of success on claims against the school district.

II.

A.

We begin by discussing plaintiffs’ appeal regarding

the motions for summary judgment of Webb and Stice.

This court reviews de novo the district court’s grant of

summary judgment. Toledo Ticket Co. v. Roadway Express,

Inc., 133 F.3d 439, 441 (6th Cir. 1998). The proper inquiry

on appeal from a grant of summary judgment is “whether

the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986). This court views

the evidence in the light most favorable to the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

1. Title IX Claims

Plaintiffs argue that the court erred in its decision

with respect to their Title IX claims. The Supreme Court

\ .

App. 13

has indicated that a school official, who must at a mini-

mum have authority to address alleged discrimination

and institute corrective measures, can be liable for dam-

ages under Title IX. To be liable, the official must (1) have

actual knowledge of discrimination; and (2) fail ade-

quately to respond in such a way that the response

amounts to deliberate indifference to discrimination. Geb-

ser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91

(1998). Gebser was decided after the district court granted

summary judgment to Webb and Stice on the Title IX

claims. After Gebser came out, however, the court held

that it would not change its Title IX decision because it

had already decided defendants did not act with deliber-

ate indifference when addressing the § 1983 claims. We

note that it is debatable whether Webb and Stice had

actual notice. Nonetheless, we affirm based on the rea-

soning of the district court with respect to the absence of

deliberate indifference. See Wilson v. Webb, No. 1:94-

CV-45-M (W.D. Ky. filed Sept. 30, 1996); Wilson v. Webb,

No. 1:94-CV-45-M (W.D. Ky. filed Nov. 10, 1997); Wilson v.

Webb, No. 1:94-CV-45-M (W.D. Ky. filed Aug. 5, 1998).

2. Section 1983 Claims

Plaintiffs maintain that the court erred in granting

summary judgment on the section 1983 claims against

Webb and Stice. Both parties agree upon the standard

that should apply to claims against school administrators

in their individual capacities, which requires a showing

of deliberate indifference by the defendant. See Doe v.

Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994); see

also Doe v. Claiborne County, Tenn., 103 F.3d 495, 513 (6th

Cir. 1996). We affirm based upon the reasoning of the

App. 14

district court, which found no deliberate indifference.

Wilson v. Webb, No. 1:94-CV-45-M (D.Ky. Sept. 30, 1996).

With respect to the official capacity claims, plaintiffs

maintain that defendants’ failure to act amounted to a

policy or custom of the school-district. We agree with the

district court that only Webb had the final policymaking

authority sufficient to subject the school district to lia-

bility. See Adkins v. Board of Educ. of Magoffin County, Ky.,

982 F.2d 952, 957 (6th Cir. 1993); Ky. Rev. Stat. Ann.

§§ 160.370, 160.390, 161.790(3) (Banks-Baldwin 1999).

Because Webb’s actions were not personally indifferent,

he could not have acted in such a manner as to create a

policy of deliberate indifference that would subject the

district to liability. See Jane Doe “A” v. Special Sch. Dist.,

901 F.2d 642, 646 (8th Cir. 1990); Gates v. Unified Sch. Dist.

No. 449, 996 F.2d 1035, 1042 (10th Cir. 1993).

Plaintiffs also assert that they were injured by the

inadequate investigation because they were ostracized

and harassed by their fellow students and teachers at the

school, the manner of the investigation multiplied plain-

tiffs’ humiliation, and Price had to attend school with

Luttrell once his suspension ended. Plaintiffs fail to cite

any case suggesting that the asserted injuries amounted

to violation of their constitutional rights, nor did they

refer to such injuries in their complaints. Therefore, this

argument is not well-taken.

3. State Law Claims

Plaintiffs argue that the court should not have

granted Webb and Stice’s request to file a late motion for

summary judgment on the state claims of negligence and

eT Tr

App. 15

intentional infliction of emotional distress. Plaintiffs have

waived this argument by failing to explain why the court

erred. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th

Cir. 1997) (citation omitted) (issues adverted to in a per-

functory manner, unaccompanied by some effort at devel-

oped argumentation, are deemed waived.).

With respect to the merits of the motion, defendants

argue for the first time on appeal that sovereign immu-

nity bars the claims. See Mixon v. Ohio, 193 F.3d 389, 397

(6th Cir. 1999) (holding that sovereign immunity may be

raised for the first time on appeal because it involves a

question of jurisdiction); Timmer v. Michigan Dep't of Com-

merce, 104 F.3d 833, 836 (6th Cir. 1997). The Kentucky

Constitution provides that the “General Assembly may,

by law, direct in what manner and in what courts suits

may be brought against the Commonwealth.” Ky. Const.

§ 231. Local school districts fall within this provision,

which provides for sovereign immunity against liability

for torts. Clevinger v. Board of Educ., 789 S.W.2d 5, 10-11

(Ky. 1990). Therefore, the allegations against Webb and

Stice in their official capacities are barred by sovereign

immunity. See Kentucky v. Graham, 473 U.S. 159, 165-66

(1985) (indicating that official-capacity suits are treated as

suits against the entity).

Webb and Stice are also immune in their individual

capacities. Public officials exercising a discretionary func-

tion are entitled to absolute immunity from liability as

long as their official acts are within the general scope of

their authority. See Franklin County, Ky. v. Malone, 957

S.W.2d 195, 201 (Ky. 1997). Webb and Stice were exercis-

ing discretionary powers. They exercised judgment, and

App. 16

could choose between options of how to pursue the com-

plaints presented to them. See id. For these reasons, the

district court correctly granted summary judgment on the

state claims.

4. Award of Costs

Finally, plaintiffs argue that the court erred in award-

ing costs to Webb and Stice because plaintiffs are two

schoolgirls from poor families who suffered sexual abuse

at the hands of a school employee. The district court’s

decision with respect to costs was not clearly erroneous.

See White & White, Inc. v. American Hosp. Supply Corp., 786

F.2d 728, 731-32 (6th Cir. 1986) (holding that good faith of

the non-prevailing party is an insufficient basis to deny

costs and indicating that a court should not consider the

prevailing party’s ability to bear its own expenses); see

also Smith v. Southeastern Penn. Transp. Auth., 47 F.3d 97,

99-100 (3d Cir. 1995) (per curiam) (pointing out that even

parties proceeding in forma pauperis can be assessed

costs).

Next, we turn to Luttrell’s appeal of the court’s deci-

sions. This court reviews de novo a district court’s denial

of a motion for judgment as a matter of law. See Pouillon

v. City of Owosso, 206 F.3d 711, 719 (6th Cir. 2000). Judg-

ment as a matter of law is appropriate only when there is

a complete absence of fact to support the verdict, so that

no reasonable juror could have found for the nonmoving

party. See id. A district court’s denial of a new trial will be

— overturned only upon a finding that the district court

een ns

App. 17

abused its discretion. See Becht v. Owens Corning Fiberglas

Corp., 196 F.3d 650, 655 (6th Cir. 1999). This court also

reviews evidentiary rulings for an abuse of discretion. See

In re Air Crash Disaster, 86 F.3d 498, 526 (6th Cir. 1996).

1. Section 1983 Claim

Luttrell argues that plaintiffs failed to state claims

under section 1983. The initial inquiry in a § 1983 action

must focus on (1) whether the conduct complained of was

committed by a person acting under color of state law;

and (2) whether-this conduct deprived a person of a

constitutional right. See Parratt v. Taylor, 451 U.S. 527, 535

(1981), overruled on other grounds by Daniels v. Williams,

474 U.S. 327 (1986). Luttrell maintains that he was not

acting under color of state law and that no constitutional

violation was established.

a. Acting Under Color of State Law

First, Luttrell argues that he could not have been

acting under color of state law because his actions were

prohibited by state law. The cases he cites in support of

this position are not directly on point and are unpersua-

sive. See Barney v. New York, 193 U.S. 430, 437-38 (1904);

Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). He

also maintains that he did not have any authority to

engage in the conduct at issue. The very case cited by

Luttrell, however, implies that a defendant would have

been acting under color of state law had he been perform-

ing his duties as a teacher at the time of the improper

actions. See D.T. v. Independent Sch. Dist. No. 16, 894 F.2d

1176, 1190-91 (10th Cir. 1990); see also Taylor Indep. Sch.

App. 18

Dist., 15 F.3d at 452 n. 4 (indicating that a teacher’s

conduct is taken under color of state law if a real nexus

exists between the activity out of which the violation

occurs and the teacher’s duties and obligations as a

teacher). Luttrell also maintains that no evidence at trial

showed that his conduct was related to his duties as a

teacher. Contrary to this assertion, there was ample evi-

dence showing that Luttrell took advantage of his posi-

tion. Wilson and Price knew Luttrell because he was a

teacher. Wilson saw him regularly at the school, went to

his classes (using his permission slips to leave her other

classes), and was his teaching assistant. While some of

the acts alleged by Wilson took place off-campus and

outside of school hours, she also alleged acts that took

place at school and on a school trip. Cf. Claiborne County,

Tenn., 103 F.3d at 500-01, 511 (indicating that court implic-

itly held that teacher was state actor and therefore consti-

tutional injury occurred under color of state law in case

where abuse took place both on and off campus). Price

was Luttrell’s student and her incident happened while

she was walking out of his class. Luttrell was acting

under color of state law.

b. Deprivation of Constitutional Right

Second, Luttrell maintains that there was no constitu-

tional violation. He acknowledges that students have a

right to bodily integrity, but argues that the acts alleged

by plaintiffs are not egregious enough to violate this

right.

Luttrell’s argument is made in terms of a failure to

state a claim. To the extent that Luttrell is appealing the

App. 19

denial of his motion to dismiss, he cannot prevail. This

court has indicated that a plaintiff may have stated a

substantive due process claim based on allegations that a

teacher placed his hands between a student’s breasts,

fondled her buttocks, and secured duplicate keys to her

room on school road trips. See Lillard v. Shelby County Bd.

of Educ., 76 F.3d 716, 720, 725-27 (6th Cir. 1996). Plaintiffs’

comparable allegations in their complaint are sufficient to

have stated a claim.

With respect to Wilson, Luttrell argues that her con-

tacts with him were the result of her own aggressive

pursuit of him. To the extent Luttrell is arguing for failure

to state a claim, Wilson did not indicate in her complaint

that she consented to the contacts. To the extent Luttrell

might be arguing that the evidence would not support the

verdict because of consent, review of the evidence in this

case demonstrates that a reasonable jury could hear the

evidence and believe that acts between Luttrell and

Wilson were not consensual. We also note that Luttrell’s

theory at trial did not appear to be that Wilson consented,

but that the acts never occurred.

Luttrell also correctly maintains that a “shocks the

conscience” standard applies to this case. See Lillard, 76

F.3d at 725. In Claiborne County, Tenn., this court held that:

[A] schoolchild’s right to personal security and

to bodily integrity manifestly embraces the right

to be free from sexual abuse at the hands of a

public school employee. . . . To be sure, the

magnitude of the liberty deprivation that sexual

abuse inflicts upon the victim is an abuse of

governmental power of the most fundamental

sort; it is an unjustified intrusion that strips the

App. 20

\

very essence of personhood. If the “right to

bodily integrity” means anything, it certainly

encompasses the right not to be sexually

assaulted under color of law. This conduct is so

contrary to fundamental notions of liberty and

so lacking of any redeeming social value, that no

rational individual could believe that sexual

abuse by a state actor is constitutionally permis-

sible under the Due Process Clause.

103 F.3d at 506-07. This language indicates that sexual

abuse of a student by a teacher is a constitutional depri-

vation, which implicitly indicates that such abuse shocks

the conscience. The third degree sexual abuse and inde-

cent exposure by a teacher, as described in the jury

instructions, would fall under the type of actions found

in Claiborne County, Tenn. to be constitutionally impermis-

sible. Therefore, the conduct in this case was a constitu-

tional deprivation.

2. Statute of Limitations

Luttrell argues that Price’s claims should have been

dismissed as time-barred. He maintains that one year

after Price had reached the age of majority, she made no

motion to substitute herself as the real party in interest.

See Ky. Rev. Stat. ANN. § 413.140 (Banks-Baldwin 1999)

(one-year statute of limitations for an injury to a plaintiff

or his child); Wilson v. Garcia, 471 U.S. 261, 268-69 (1985)

(indicating that state statutes of limitations apply to

§ 1983 claims). However, Price was always the real party

in interest. See Fep. R. Crv. P. 17(c); Lambert v. Corbin, 194

Ky. 373, 374-75, 239 S.-W. 453, 454 (Ky. 1922) (indicating

that infant is plaintiff in next friend cases). Her failure to

ei ae

App. 21 :

remove promptly her next friend did not invalidate the

proceeding. See Cozine v. Bonnick, 245 S.W.2d 935, 937-38

(Ky. 1952) (holding that when the infant comes of age, his

representative passes out of the case and it proceeds in

the name of the infant). Nor does Luttrell appear to have

been prejudiced by Price’s failure to remove her next

friend when she reached the age of majority; shortly after

Luttrell pointed out the failure, the next friend asked to

be removed from the case. Cf. Fep. R. Civ. P. 17(a). The

court did not err by granting the motion to remove and

denying the motion to dismiss. Zz

3. Sufficiency of Evidence for the Verdicts

a. Wilson

In arguing that the verdicts were not supported by

the evidence, Luttrell maintains that the verdicts were

inconsistent with respect to Wilson and the inconsisten-

cies reveal deficiencies in the evidence and instructions.

Luttrell also argues that the evidence in his favor was

much more substantial and credible, so that a jury could

not reasonably find in Wilson’s favor. There was not a

complete absence of fact to support the verdict; therefore,

the court correctly denied the motion for judgment as a

matter of law. See Pouillon, 206 F.3d at 719. Furthermore,

while there was evidence that countered the evidence

presented by Wilson, the verdict was not against the clear

weight of the evidence. There was no abuse of discretion

in the denial of a new trial.

App. 22

b. Price

Luttrell also maintains that Price’s claim was not

supported by sufficient evidence. He argues that the indi-

cation of eyewitnesses that the contact could have been

accidental had to outweigh Price’s own testimony that

the contact was deliberate. He also maintains that a phys-

ical demonstration of the event showed that he could not

have reached Price’s pelvic area. The verdict is not

against the clear weight of the evidence. Instead, the jury

appears to have reasonably credited Price’s own percep-

tion over the perceptions of Luttrell and students who

testified only that the contact was possibly accidental.

4. Improper Admission of Irrelevant or Unduly Prejudicial

Evidence

Luttrell asserts that the court erred in admitting evi-

dence of his sexual abuse and harassment of other stu-

dents. We find no abuse of discretion in the court’s

decision and affirm for the reasons stated by the district

court. See Wilson v. Luttrell, No. 1:94-CV-45-M (W.D. Ky.

filed Apr. 6, 1998).

5. Testimony of Relations with Alexander and Smith

Luttrell contests the court’s decision to allow

Wilson’s testimony that Luttrell had told her he had sex

with Renee Alexander and Nicole Smith. According to

Luttrell, the court determined to allow this testimony

under Federal Rule of Evidence 801(d)(2)(A) as an admis-

sion by a party-opponent. Luttrell has failed to indicate to

this court where the district court addressed this matter.

App. 23

See Fev. R. App. P. 28(a)(9). We note that the district court's

decision on Luttrell’s motion in limine addressed rumors

of relationships, not a statement by Luttrell to Wilson. We

also note that the record reveals that Wilson testified at

trial without objection regarding Luttrell’s statement. We

decline to find plain error in the court’s decision to allow

Wilson’s testimony. See United States v. Fortson, 194 F.3d

730, 734, 736-37 (6th Cir. 1999) (affirming, on plain error

review, court’s decision to admit testimony by individual

that defendant threatened him as an admission by a

party-opponent).

6. Opinion of Rampenthal

Luttrell complains that the court erred in allowing

Wilson’s therapist, Jenny Rampenthal, to express an opin-

ion even though she had not been identified as an expert

witness. Federal Rule of Civil Procedure 26(a)(2) requires

the disclosure of the identity of any person who may be

used to present expert testimony. Plaintiffs adequately

identified Rampenthal because she was listed on Lut-

trell’s witness list, and plaintiffs indicated they would

call anyone on that list. Nor has Luttrell alleged or dem-

onstrated that Rampentii«' was retained or specially

employed to provide expert testimony in the case or that

her duties as an employee of a party regularly involve

giving expert testimony, which would implicate other

requirements in Rule 26.

a

7. Exclusion of Evidence Regarding Price

Luttrell argues that the court erred in refusing to

allow him to present evidence of certain conduct by Price.

App. 24

We find no abuse of discretion and affirm for the reasons

stated in the district court’s sealed order. See Wilson v.

Luttrell, No. 94-CV-45-M (W.D. Ky. Apr. 23, 1998).

8. Failure to Allow Avowal Testimony of Alexander

Luttrell also argues that he should have been allowed

to present Alexander’s avowal testimony as to the source

of the rumor of a sexual relationship between her and

Luttrell. Luttrell has failed to point to the place in the

record where he asked for, and was refused, the oppor-

tunity to present this evidence. See Fed. R.App. P. 28(a)(9).

Furthermore, he refers only to Wilson’s testimony regard-

ing a statement made to her by Luttrell concerning the

existence of a sexual relationship between Luttrell and

Alexander. This testimony did not refer to Wilson hearing

a rumor, making Alexander’s testimony irrelevant.

9. Excessive Damages

Luttrell maintains that the damages were excessive

and resulted from a jury inflamed by passion and preju-

dice. He suggests that an award of $451,000 against a

school teacher is clearly the result of passion and preju-

dice, yet cites no case law to support this assertion. In the

absence of any law to support his position, Luttrell’s

argument is unpersuasive. Luttrell also argues that the

jurors were inflamed by improper incitements by oppo-

sing counsel. Review of counsel’s statements fails to

reveal improper incitements. Furthermore, the jury was

instructed that counsel’s statements are not evidence.

App. 25

In the absence of undue passion and prejudice on the

part of the jury, this court reviews for abuse of discretion

the court’s refusal to grant a new trial based on excessive

damages. See Skalka v. Fernald Envtl. Restoration Mgmt.

Corp., 178 F.3d 414, 424 (6th Cir. 1999), cert. denied, 120

S.Ct. 2687 (2000). A verdict is not excessive unless it

exceeds the maximum that a jury could reasonably find to

be compensatory for the loss. See id. at 424-25; see also

Rodgers v. Fisher Body Div., GMC, 739 F.2d 1102 (6th Cir.

1984) (assessing whether verdict is shocking or manifests

plain injustice).

There was no abuse of discretion in the decision to

deny a new trial on this issue. Plaintiffs were subjected to

sexual misconduct at a vulnerable age by a teacher. Lut-

trell’s attempt to minimize the Price incident is unpersua-

sive. Luttrell also questions the smaller award to Wilson,

who alleged more egregious acts. Luttrell fails, however,

to account for the possibility that the jury may have

believed only some of Wilson’s allegations or may have

perceived differences between the plaintiffs’ injuries.

Based upon the evidence presented at trial, the verdicts

did not exceed the maximum a jury reasonably could find

to be compensatory.

Luttrell also maintains that the award of punitive

damages was excessive and unsupported by the evi-

dence. Yet, his acts were reprehensible for an adult and a

teacher, had a negative impact on the plaintiffs, and

suggested the possibility that he would repeat this type

of behavior with other students. There was no abuse of

discretion in declining to hold a new trial on this point.

Cf. BMW of N. Am. v. Gore, 517 U.S. 559, 575-76, 580-81,

583 (1996) (pointing to three factors for evaluating when a

App. 26

punitive damages award is excessive: the degree of repre-

hensibility of the defendant’s conduct; the ratio between

compensatory and punitive damages; and the difference

between the remedy and the civil or criminal penalties

authorized); Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S.

1, 23-24 (1991) (finding constitutionally acceptable puni-

tive damages award of more than four times the amount

of compensatory damages).

10. Award of Fees and Costs to Plaintiffs

Luttrell maintains that the district court’s award of

fees and costs to plaintiffs is excessive, despite the signifi-

cant reductions made by the court. Review of the opinion

awarding costs demonstrates that the court thoroughly

considered the issues raised on appeal and did not err.

See White & White, Inc. v. American Hosp. Supply Corp., 786

F.2d 728, 732 (6th Cir. 1986) (applying clear error review).

11. Counterclaims

Luttrell maintains that the court should not have

granted summary judgment on the counterclaims follow-

ing the jury verdict. Because of the court’s prior rulings,

the only counterclaims at issue are those for intentional

infliction of emotional distress and abuse of process. We

affirm for the reasons stated by the district court at the

hearing on the motion. See Tr. at 1874-83.

App. 27

12. Jury Instructions

Luttrell presents little discussion of the jury instruc-

tions. For the most part, he has waived his appeal regard-

ing the instructions. See McPherson, 125 F.3d at 995-96.

Luttrell arguably did not waive his appeal with respect to

the failure to give the jury a “shocks the conscience”

instruction. In a different section of his appellate brief.

Luttrell argues that the jury should have been given his

proposed instruction setting out the “shocks the con-

science” standard. Luttrell’s proposed instruction indi-

cated that “the abuse must also amount to a brutal and

inhumane action, outrageous and shocking to the con-

science.” The district court declined to give the proposed

instruction, relying upon Claiborne County, Tenn., 103 F.3d

495. See Tr. at 1775-77, Wilson v. Luttrell, No. 1:94-CV-45-M

(D.Ky. May 6-7, 1998). We hold that any reasonable juror

would conclude that the conduct described in the jury

instructions regarding third degree sexual abuse and

indecent exposure would shock the conscience when the

conduct is between a teacher and student. Therefore, the

court did not commit error in declining to give Luttrell’s

requested instruction. To the extent it could be suggested

that Luttrell did not waive his appeal for the other two

instructions described in his brief, involving assault and

battery and punitive damages, consideration of the jury

instructions as a whole reveals that the instructions were

not confusing, misleading, or prejudicial. See United States

v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995).

-_

App. 28

13. Jury Selection

Luttrell maintains that he was deprived of his right

to a fair and impartial jury. First, he argues that he was —

deprived of this right because Juror 21 should have been

dismissed for cause. He argues that he deserves a new

trial because he should not have been forced to use a

peremptory strike on her. While the district court may

have abused its discretion in failing to strike Juror 21 for

cause, any error was harmless. Juror 21 did not sit on the

jury and Luttrell has done nothing to show that his jury

was not impartial. See Ross v. Oklahoma, 487 U.S. 81, 86, 88

(1988) (holding that, as long as the jury that sits is impar-

tial, the fact that the defendant had to use a peremptory

challenge to achieve the result does not mean the consti-

tution was violated).

Second, Luttrell argues that he deserved an evidenti-

ary hearing with respect to Juror 12 based upon defense

counsel’s suggestion, after the trial, that Juror 12 was a

“co-worker of the father of a material plaintiffs’ witness.

We find no error in the court’s determination that Luttrell

had not made a showing sufficient to obtain a new trial

_ and affirm for the reasons stated by the district court. See

Wilson v. Luttrell, No. 1:94-CV-45-M (W.D. Ky. filed Feb.

19, 1999). Nor do we find error in the court’s implicit

decision not to hold an evidentiary hearing on the matter.

III.

For the foregoing reasons, the judgment of the dis-

trict court is AFFIRMED.

App. 29

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO.: 1:94-CV-45-M

VICKIE WILSON

TAMMY PRICE

PLAINTIFFS

VS.

TONY LUTTRELL DEFENDANT

JUDGMENT

e Jury Verdict.

This action came before the Court for a trial by jury.

The issues have been tried and the jury has rendered its

verdict.

The jury found for Plaintiff, Vickie Wilson, and

awarded the sum of Fifty Thousand Dollars ($50,000.00)

for mental and emotional pain and suffering, embarrass-

ment and humiliation; One Thousand Dollars ($1,000.00)

for medical care, including psychological counseling; and

One Hundred Thousand Dollars ($100,000.00) for puni-

tive damages, for a total damage award of One Hundred

Fifty-One Thousand Dollars ($151,000.00).

The jury found for Plaintiff, Tammy Price, and

awarded the sum of One Hundred Thousand Dollars

($100,000.00) for mental and emotional pain and suffer-

ing, embarrassment and humiliation, and Two Hundred

Thousand Dollars ($200,000.00) for punitive damages, for

a total damage award of Three Hundred Thousand Dol-

lars ($300,000.00).

App. 30

IT IS HEREBY ORDERED AND ADJUDGED as

follows:

1. Plaintiff, Vickie Wilson, recover from Defendant

compensatory damages for injuries resulting from actions

of said Defendant in the amount of Fifty-One Thousand

Dollars ($51,000.00) and punitive damages in the amount

of One Hundred Thousand Dollars ($100,000.00).

2. Plaintiff, Tammy Price, recover from Defendant

compensatory damages for injuries resulting from actions

of said Defendant in the amount of One Hundred Thou-

sand Dollars ($100,000.00) and punitive damages in the

amount of Two Hundred Thousand Dollars ($200,000.00).

3. Plaintiffs recover their costs of this action from

Defendant.

IT IS SO ORDERED this the 5th day of August,

1998.

/s/ Joseph H. McKinley

JOSEPH H. MCKINLEY, JR.,

JUDGE

UNITED STATES

DISTRICT COURT

Copies to: Counsel of record

App. 31

99-5460 /5462

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VICKIE WILSON, ET AL., )

) ORDER ~

Plaintiffs-Appellees, .

) (Filed Oct. 30, 2000)

V.

DAVID WEBB,

INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY

AS SUPERINTENDENT OF

THE EDMONSON COUNTY

BOARD OF EDUCATION,

ET AL.,

Defendants,

TONY LUTTRELL,

INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY

AS A TEACHER IN THE

EDMONSON COUNTY

SCHOOL SYSTEM,

Defendant-Appellant.

ee a a ee ee ee ee ee, ee, ee, ae ee, ee, ae,

BEFORE: KRUPANSKY, SUHRHEINRICH, and

NORRIS, Circuit Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

panel.

App. 32

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the cases. Accordingly, the

petition is denied.

ENTERED BY ORDER

OF THE COURT

Leonard Green

Leonard Green, Clerk