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Hovind v. Cane

United States District Court, W.D. Oklahoma

November 21, 2019

ANGELA HOVIND and BUDDY HOVIND, next friends of A.P.H. and A.N.H., Plaintiffs,
v.
LUCAS CANE and INDEPENDENT SCHOOL DISTRICT NO. 117 of POTTAWATOMIE COUNTY, OKLAHOMA, Defendants.

          ORDER

          TIMOTHY D. DeGIUSTI, Chief United States District Judge.

         Defendant 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.

         BACKGROUND

         Plaintiffs 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.

         Following 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 denied.

         Cane 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”).[1]

         STANDARD OF DECISION

         To 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. 2009).

         DISCUSSION

         Defendant 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.

         I. Plaintiffs fail to state a claim for substantive due process and equal protection violations.

         Count 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.

         A. Plaintiffs fail to allege conduct that shocks the judicial conscience.

         Plaintiffs first assert a 42 U.S.C. § 1983 supervisory liability claim against Defendant District based ...


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