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L.E. v. Lakeland Joint School District # 272

United States District Court, D. Idaho

August 13, 2019

L.E., an individual, Plaintiff,
v.
LAKELAND JOINT SCHOOL DISTRICT #272, a political subdivision of the State of Idaho, M.D., an individual, J.W., an individual, and R.R., an individual. Defendants.

          MEMORANDUM DECISION AND ORDER

          David C. Nye Chief U.S. District Court Judge.

         I. INTRODUCTION

         This matter comes before the Court on Defendant Lakeland Joint School District #272's (“the District”) Motion for Summary Judgment (Dkt. 42), and Motion to Strike (Dkt. 45). The Court held oral argument on May 15, 2019, and afterward took both motions under advisement. For the reasons set forth below, the Court DENIES the District's Motion for Summary Judgment (Dkt. 42), and GRANTS in PART and DENIES in PART the District's Motion to Strike (Dkt. 45).

         II. BACKGROUND

         L.E. was an eighth-grade student at Timberlake Junior High during the 2012-2013 school year. Dkt. 43-3, at 7. That year, Shawn Lawler (“Coach Lawler”), the Timberlake High School cross country and track coach, pulled L.E. out of class along with a few other students who were interested in joining the high school cross country team.[1] Id. Coach Lawler encouraged them to attend the Clearwater River Running Camp (“Camp”) and promoted it as a team bonding experience. Id.

         The Camp was operated by Lewis-Clark State College (“LCSC”) and was held at LCSC's campus and the Johnson Bar Campground. Dkt. 42-4, at 2. Coach Lawler attended the Camp as a volunteer coach. Id. at 3. The District's male students[2] who attended the Camp shared tents. Dkt. 43-2, at 18, 20.

         At the end of the third day of Camp, L.E. bathed and returned to his tent to change clothes. Dkt. 43-3, at 41, 42. While L.E. was wearing only his underwear, Defendants M.D., J.W., and R.R.[3] entered his tent. J.W. wrestled L.E. to the ground and pinned his arms down while. R.R. pinned his legs. M.D. then forcibly pushed the handle of a toilet plunger into L.E.'s anus. Id. at 18-20. L.E.'s attackers exited the tent leaving L.E. in tears. Id. at 20-21.

         After hearing that L.E. was upset, Coach Lawler spoke with him privately. Dkt. 43-2, at 24. L.E. cried as he told Coach Lawler that M.D. “shoved a plunger into [his] butt.” Dkt. 43-3, at 23-24. After this conversation, Coach Lawler gathered the District's male students, chastised them for “screwing around, ” and had them apologize to L.E. Dkt. 43-2, at 25-26. Coach Lawler did not report the assault to the District. Id. at 20.

         After the Camp, L.E., M.D., J.W., and R.R. all attended Timberlake High School, and L.E., J.W., and R.R. ran on the school's cross-country team. Dkt. 43-2, at 14-15, 155; Dkt. 43-3, at 9. Throughout the year, M.D. and J.W. gave L.E. a “rough time.” Dkt. 43-3, at 10. On one occasion during class, M.D. said to him, “You liked it in your ass.” Id. at 33. M.D. also made multiple derogatory “gay jokes” about him. Id. On another occasion (following a track and field event), J.W. told L.E. that he would “get raped at State.” Id. at 10.

         During that 2013-2014 school year, Coach Lawler pulled L.E. out of a science class and asked him to attend the Camp again in the summer of 2014. Id. at 9, 30. Coach Lawler said L.E. would not need to pay because of what happened the prior year. Id. at 9. L.E. attended the Camp even though he was expelled from Timberlake High School shortly before the school year ended. Id. at 29-30.

         Some time after the Camp in 2014, L.E.'s mother became aware of what happened at the Camp in 2013. Dkt. 43-2, at 108-09. On or about August 31, 2015, she reported it to Georgeanne Griffith, a District employee.[4] Id. at 35, 52-53. Thereafter, the District asked Coach Lawler to recount what happened at the Camp in 2013; and on September 4, 2015, he wrote a letter to the District explaining what he remembered. Dkt. 43-2, at 77. In that letter, Coach Lawler said L.E. told him that M.D. “had taken the plunger and pushed the plunger handle into [L.E.'s] anus.” Id.

         On September 28, 2015, the District issued two letters[5] regarding Coach Lawler's failure to report the assault. Id. at 68-69. The first letter officially reprimanded Coach Lawler, and the second letter alerted the Idaho Department of Education's Professional Standards Commission of his failure to report the assault. Id. The letters said Coach Lawler failed to fulfill his “professional obligation to follow School Board Policy #5260 regarding Abused and Neglected Child Reporting, Idaho Code 16-1605, and Principle IX(b) of the Code of Ethics for Idaho Professional Educators.” Id.

         However, Lisa Sexton, the District's Title IX Representative and Assistant Superintendent (“Assistant Superintendent Sexton”), wrote an addendum to the reprimand letter on January 8, 2017. Id. at 79. The addendum said that the reprimand and the Professional Standards Commission investigation were unwarranted and concluded that Coach Lawler “responded appropriately to the information he had.” Id.

         III. LEGAL STANDARD

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). This Court's role at summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In considering a motion for summary judgment, this Court must “view[] the facts in the non-moving party's favor.” Id. To defeat a motion for summary judgment, the respondent need only present evidence upon which “a reasonable juror drawing all inferences in favor of the respondent could return a verdict in [his or her] favor.” Id. (citation omitted). Accordingly, this Court must enter summary judgment if a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The respondent cannot simply rely on an unsworn affidavit or the pleadings to defeat a motion for summary judgment; rather the respondent must set forth the “specific facts, ” supported by evidence, with “reasonable particularity” that precludes summary judgment. Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).

         IV. ANALYSIS

         A. The District's Motion to Strike (Dkt. 45)

         The Court first considers the District's Motion to Strike (Dkt. 45) because it concerns what evidence the Court may consider in deciding the District's Motion for Summary Judgment (Dkt. 42).

         The District asks the Court to strike four items from L.E.'s Response to Defendant's Motion for Summary Judgment (Dkt. 43): (1) the Declaration of Brett Sokolov; (2) the two letters dated September 28, 2015; (3) M.D.'s confession that he inserted the plunger handle into L.E.'s anus; and (4) an answer in Assistant Superintendent Sexton's deposition. Dkt. 45, at 1-2. Each will be discussed in turn.

         1. Brett Sokolov's Declaration

         The District moves to strike the Declaration of Brett Sokolov[6] (Dkt. 43-5) “because it contains expert opinion concerning legal matters.” Dkt. 45-1, at 2.

         “As a general rule, ‘testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.'” Nationwide Transp. Fin. V. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) (quoting Fed.R.Evid. 704(a)). However, “an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (quoting Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1066 n.10 (9th Cir. 2002)). “In addition to prohibiting legal expert testimony which defines the governing law, courts have also prohibited legal expert opinion which applies the law to the facts.” Pinal Creek Grp. v. Newmont Mining Corp., 352 F.Supp.2d 1037, 1043 (D. Ariz. 2005).

         In his Declaration, Sokolov first lays out his experience with Title IX. Dkt. 43-5. Then he provides his “analysis of and opinions in this matter” under the heading “Basis for Opinions and Conclusions.” Dkt. 43-5, at 37. He defines what he deems the “[a]pplicable [l]egal [s]tandards, ” and he concludes that “[t]he record yields sufficient evidence for a court to find that the School failed to uphold the regulatory standards of Title IX and was deliberately indifferent to its obligations to comply with Title IX, to investigate and remedy discrimination on the basis of sex.” Id. at 39. He applies the facts to law, and determines that Coach Lawler was an appropriate official with actual knowledge. Id. at 58, 63. He opines that Coach Lawler's response was “clearly unreasonable in light of known circumstances” and the District was likewise “clearly unreasonable.” Id. at 64, 66. He summarizes his conclusions by saying “the School failed in all of its duties . . . to act to investigate and remedy in response to notice” of the assault. Id. at 68.

         L.E. argues that “expert testimony can be allowed on matters crossing the line between factual and legal conclusions or in cases dealing with complicated legal standard.” Dkt. 46, at 4. He quotes the following in support:

Courts seem more open to the admission of expert legal opinions where the subject is the application of some complex regulatory or legal standard to a specific factual background. In such a context, the opinions often involve questions of law and fact that overlap to the extent that they are virtually indistinguishable.

29 C.A. Wright & V.J. Gold, Federal Practice and Procedure, Federal Rules Of Evidence, § 6264 n.36 (1997).

         This is not that context. Because the Declaration contains opinions on ultimate issues of law, the Court hereby STRIKES the Declaration of Sokolov.[7]

         2. The Letters Dated September 28, 2015

         Next, the District moves to strike “the letters dated September 28, 2015, to Mr. Lawler and the Professional Standards Commission.” Dkt. 45, at 2. According to the District, the letters are subsequent remedial measures used to establish culpable conduct and should be struck pursuant to Federal Rule of Evidence 407. Dkt. 45-1, at 4-5. Additionally, the District argues that the letter to the Professional Standards Commission must also be stricken because it contains hearsay. Id. at 6.

         1. Rule 407

         Federal Rule of Evidence 407 states:

         When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or-if disputed-proving ownership, control, or the feasibility of precautionary measures.

Fed. R. Evid. 407.

         L.E. does not contest that the letters are subsequent remedial measures; however, he argues they are admissible under the above exception because they are used to show control. Dkt. 46, at 5. The District disputes that it had control, and since these letters could potentially show that the District had requisite control, they are admissible under Rule 407.

         2. ...


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