United States District Court, W.D. Oklahoma
ANGELA HOVIND and BUDDY HOVIND, next friends of A.P.H. and A.N.H., Plaintiffs,
LUCAS CANE and INDEPENDENT SCHOOL DISTRICT NO. 117 of POTTAWATOMIE COUNTY, OKLAHOMA, Defendants.
TIMOTHY D. DeGIUSTI, Chief United States District Judge.
Independent School District No. 117 of Pottawatomie County,
Oklahoma (“Defendant District”) brings before the
Court a Motion to Dismiss [Doc. No. 3], pursuant to
Fed.R.Civ.P. 12(b)(6). Plaintiffs have filed a Response in
Opposition [Doc. No. 5], to which Defendant has replied [Doc.
No. 6]. These matters are now fully briefed and at issue.
are the parents of minor children A.P.H. and A.N.H. (the
“Minor Children”). The Minor Children have
attended Macomb Public Schools (“MPS”) since
2015. At the time of the alleged incidents, A.P.H. was six
years old and in the first grade, and A.N.H. was five years
old and in pre-kindergarten. Defendant Lucas Cane was
employed by MPS as a middle school teacher. On June 4, 2018,
during MPS summer school, Cane would visit A.N.H. in the
cafeteria and classroom and ask A.N.H. for hugs. Cane would
tell A.N.H. that he “really, really, really
liked” A.N.H. He also told her that he did not like her
name and would repeatedly call her “Sally” in the
presence of her classmates. On June 21, 2018, A.P.H. attended
an MPS field trip. Cane was present. Cane asked A.P.H. for
hugs, demanded that A.P.H. lay on his lap, and said he
“really liked” A.P.H. A.P.H. laid on Cane's
lap, and Cane put his hand on her back.
the first trip, A.N.H. complained to her parents about Cane.
Plaintiffs attempted to contact the MPS principal that day.
They were told a new principal was now in place, though the
replacement was never identified. On July 26, 2018, the
Pottawatomie County Sheriff's Department
(“PCSD”) contacted Plaintiffs and stated that an
agent of MPS had contacted PCSD. The Minor Children
participated in a forensic interview with PCSD, and MPS took
no action against Cane. Because of Cane's inappropriate
behavior, on August 2, 2018, Plaintiffs filed for an
emergency transfer order from MPS to remove the Minor
Children from the school where Cane taught. The transfer was
was arrested on August 28, 2018, pursuant to federal charges.
He plead guilty to, inter alia, charges of
distribution of child pornography. Plaintiffs have since made
diligent attempts to have the Minor Children transferred to
another school. They bring charges here of (1) invasion of
privacy; (2) violations of the Oklahoma Governmental Tort
Claims Act; (3) negligence per se; (4) violations of Article
II §§ 2 and 7 of the Oklahoma Constitution; (5)
violations of 42 U.S.C. § 1983; and, (6) violations of
Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681(a) (“Title IX”).
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain enough facts that, when accepted as true,
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); see Robbins v. Oklahoma, 519 F.3d 1242, 1247
(10th Cir. 2008). A claim has facial plausibility when the
court can draw “the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In § 1983 cases, it is
particularly important “that the complaint make clear
exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of
the claims against him or her.” See Robbins,
519 F.3d at 1249-50 (emphasis in original); see also
Smith v. United States, 561 F.3d 1090, 1104 (10th Cir.
District moves to dismiss on several state law grounds and
the following grounds addressing federal claims: (1)
Plaintiffs' allegations do not sufficiently rise to the
level of danger-creating or conscience-shocking; (2)
Plaintiffs' allegations fail to show a causal link
between Defendant District's policies and any deprivation
of due process or equal protection; (3) Plaintiffs'
allegations fail to show a history of custom and usage; and,
(4) Defendant District did not have actual knowledge of
Cane's alleged inappropriate comments, and such alleged
comments were insufficient to alert Defendant District to any
type of sexual misconduct by Defendant Cane under Title IX.
The Court will address each argument in turn.
Plaintiffs fail to state a claim for substantive due process
and equal protection violations.
Five of Plaintiffs' Complaint alleges violations of their
due process and equal protection rights under the federal
constitution, actionable pursuant to 42 U.S.C. § 1983.
Plaintiffs fail to allege conduct that shocks the judicial
first assert a 42 U.S.C. § 1983 supervisory liability
claim against Defendant District based ...