United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye Chief U.S. District Court Judge.
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).
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. Id.
Coach Lawler encouraged them to attend the Clearwater River
Running Camp (“Camp”) and promoted it as a team
bonding experience. Id.
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 who attended the Camp shared
tents. Dkt. 43-2, at 18, 20.
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
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.
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.
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.
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.
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. 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.
September 28, 2015, the District issued two
letters 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.
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
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).
The District's Motion to Strike (Dkt.
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).
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.
Brett Sokolov's Declaration
District moves to strike the Declaration of Brett
Sokolov (Dkt. 43-5) “because it contains
expert opinion concerning legal matters.” Dkt. 45-1, at
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).
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.
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
not that context. Because the Declaration contains opinions
on ultimate issues of law, the Court hereby STRIKES the
Declaration of Sokolov.
The Letters Dated September 28, 2015
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.
Rule of Evidence 407 states:
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:
• 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.
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.