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CC, A minor, by her parents and natural guardians, Aretha Andrews and Chris 
Andrews, et al., Plaintiffs, vs. MONROE COUNTY BOARD OF EDUCATION, et al., 
Defendants.

CIVIL ACTION NO. 00-0753-CG-M

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN 
DIVISION

2009 U.S. Dist. LEXIS 110276


November 25, 2009, Decided 
November 25, 2009, Filed

 
COUNSEL:  [*1] For CC, a minor, by her parents and natural guardians, Aretha 
and Chris Andrews, RSH, a minor by her parent and natural gurdian Betty Jean 
Murphy, Plaintiffs: Jon C. Goldfarb, LEAD ATTORNEY, Rachel Lee McGinley, 
Wiggins, Childs, Quinn, and Pantazis, LLC, Birmingham, AL; Deborah Ann 
Mat-tison, Gordon, Silberman, Wiggins & Childs, Birmingham, AL.

For Monroe County Board of Education, Mike Floyd, Darenell Payne, 
Defen-dants: Mark S. Boardman, LEAD ATTORNEY, Alicia Fritz Bennett, 
Board-man, Carr & Hutcheson, P.C., Chelsea, AL.

JUDGES: Callie V. S. Granade, CHIEF UNITED STATES DISTRICT JUDGE.

OPINION BY: Callie V. S. Granade

OPINION

ORDER 
On August 17, 2000, the plaintiffs RSH and CC filed a lawsuit against 
de-fendants Monroe County (Alabama) Board of Education ("Board of 
Education"), Darenell Payne ("Payne"), and Mike Floyd ("Floyd"), asserting 
that the defendants violated their federal rights under Title IX of the 
Education Amendments of 1972 (20 U.S.C. § 1681) ("Title IX") and under the 
due process and equal protection clause of the Fourteenth Amendment to the 
United States Constitution (42 U.S.C. § 1983). The plaintiffs also allege 
state law claims of invasion of pri-vacy, assault and battery, outrage, 
negligent and/or  [*2] wanton and ma-licious training, supervision and 
re-tention, and false imprisonment. On September 18, 2001, defendants Payne 
and the Board of Education filed a mo-tion for summary judgment with 
sup-porting brief and evidentiary submis-sions. (Docs. 48, 49, & 52). This 
court granted summary judgment for Payne as to the plaintiffs' substan-tive 
due process claim under § 1983 and in his official capacity as to the 
remaining claims under § 1983 but de-nied Payne's motion as to the 
plain-tiffs' equal protection claim against Payne in his individual capacity 
and their state law claim for outrage. This court held that Payne was not 
en-titled to qualified immunity from plaintiffs' equal protection claim 
be-cause his lack of actions were not within his discretionary authority as 
principal of the plaintiffs' middle school. (Doc. 87). Payne thereafter 
appealed.
The Court of Appeals for the Elev-enth Circuit reversed this court's de-nial 
of Payne's motion as to the equal protection claim, holding that Payne, in 
fact, was acting within his discre-tionary authority. However, since this 
court did not reach the second part of the qualified immunity analysis, 
whether the plaintiffs have demon-strated that Payne's  [*3] actions violated 
clearly established constitu-tional law, the Eleventh Circuit re-manded the 
matter for further analy-sis. (Doc. 103). As a result, this matter is now 
before the court on lim-ited remand (Doc. 103) from the Elev-enth Circuit to 
apply the second part of the qualified immunity test as pro-vided in Saucier 
v. Katz, 533 U.S. 194, 201 (2001) to the plaintiffs' claim that the defendant 
Payne, in his individual capacity, violated the Equal Protection Clause of 
the Four-teenth Amendment of the United States Constitution by way of 42 
U.S.C. § 1983 through his deliberate indiffer-ence to the sexual harassment 
of the plaintiffs by defendant Floyd who was their teacher.
For the reasons stated below, this court finds that defendant Payne is not 
entitled to qualified immunity, thus this court holds that the Motion for 
Summary Judgment is due to be de-nied as to the specific claim that Payne in 
his individual capacity vio-lated the plaintiffs' federal rights under the 
Equal Protection Clause of the Fourteenth Amendment.

FINDINGS OF FACT 
At all times relevant to this law-suit, defendant Board of Education 
op-erated the Monroeville Middle School in Monroeville, Alabama, and 
defendant Payne was the  [*4] school principal. Then eleven-year-old females, 
plain-tiffs RSH and CC, were special educa-tion students at the school. 
According to plaintiffs' allegations, their teacher, defendant Floyd, touched 
them in a sexual manner in separate inci-dents. Plaintiffs further allege 
that defendant Payne, after learning of these sexual encounters, took no 
ac-tion against defendant Floyd. Accord-ing to the plaintiffs, defendant 
Payne's inaction allowed defendant Floyd to continue engaging in 
inappro-priate sexual conduct with his stu-dents.
After a review of the record, this court finds the following facts to be 
uncontroverted:
1. In her deposition, plaintiff RSH testified that defendant Floyd took her 
into the boys' bathroom, pulled up her dress, and stuck his finger in her. 
(Doc. 57, Ex. 11. RSH Dep., pp. 55-6, 155).
2. Plaintiff RSH stated that, on another occasion, defendant Floyd sat her in 
his lap and put his arm around her. (Id. at 56).
3. Plaintiff RSH also testified that on yet another occasion, she and another 
student, Belinda, were in the classroom when defendant Floyd put a movie in a 
VCR, and the three of them watched half of the movie which showed a naked man 
and woman in bed rubbing on each  [*5] other. (Id. at 56-7, 79-81, 136-40).
4. According to plaintiff RSH, de-fendant Floyd touched her between her legs 
and on the breast on more than one occasion. (Id. at 57-9).
5. Plaintiff RSH reported defendant Floyd's improper behavior to another 
teacher, Ms. McKinley. (Id. at 34).
6. Plaintiff RSH's mother testified that her daughter told her on three 
occasions that defendant Floyd had been touching her; after the third time, 
the mother went to the school to talk and discuss the matter with de-fendant 
Payne. (Doc. 57, Ex. 13, RSH mother's Dep., pp. 33-4). The date of that 
meeting was January 21, 2000. (Doc. 57, Ex. 14, Payne Dep., p. 28).
7. According to defendant Payne, RSH's mother's report of her daugh-ter's 
allegations was the first time he had heard any sexual allegations against 
defendant Floyd. (Id.).
8. Defendant Payne then held a con-ference with defendant Floyd, plain-tiff 
RSH, and her mother, during which plaintiff RSH repeated her allegations of 
defendant Floyd's touching her. (Id. at 28-31).
9. After RSH's mother told Payne of defendant Floyd's harassment of an-other 
student, that student (a boy) was brought into the conference at de-fendant 
Payne's invitation. The stu-dent stated  [*6] that defendant Floyd had been 
improperly touching him. (Id. at 30).
10. After plaintiff RSH and the male student made their allegations, the 
children and defendant Floyd left, leaving defendant Payne and RSH's mother 
to talk. (Id. at 31). Defendant Payne offered to remove plaintiff RSH from 
defendant Floyd's classroom, but RSH's mother indicated that she did not want 
that; rather, she just wanted defendant Floyd to keep his hands off of her 
daughter - which defendant Payne assured her would be the case. (Id. at 31, 
34).
11. Defendant Payne then talked with defendant Floyd, who again denied the 
accusations. (Id. at 35).
12. According to defendant Payne, both plaintiff RSH and the male stu-dent 
recanted their assertions against defendant Floyd later that same day. (Doc. 
48, Ex. 1, Payne Aff., PP 16 & 17). Plaintiff RSH and the male stu-dent both 
deny that they recanted their original allegations. (Doc. 57, Ex. 24, RSH 
Aff. and Ex. 26, Male Stu-dent Aff.).
13. Subsequently, defendant Payne monitored defendant Floyd's classroom by 
looking-in and observing it "occa-sionally," and by watching defendant 
Floyd's interactions with the students between classes in the hall. (Id. at 
35-39). Defendant  [*7] Payne stated that he did not interview any other 
children. (Id. at 39).
14. Defendant Payne admitted that, although he was aware of the relevant 
school board policy, 1 he did not start an immediate investigation into the 
matter or notify RSH's mother or the male student's guardians of his findings 
as required by the policy. (Id. at 40-3). Defendant Payne further admitted 
that he did not provide in-formation of the allegations to the board 
superintendent because he never conducted a formal investigation. (Id. at 
44-5).

1   The Monroeville Middle School sexual harassment policy re-quires, in 
relevant part, that (1) upon learning of a complaint, the principal shall 
start an im-mediate investigation into the matter, and (2) the completed 
in-vestigation shall be reviewed by the Superintendent or designee and legal 
counsel for prompt and appropriate action, if warranted. (See Doc. 57, Ex. 
14, Payne Dep., Ex. 11).
15. Plaintiff RSH alleges that de-fendant Floyd did other unspecified "wrong 
things" to her after the con-ference held with her mother, defen-dant Payne, 
and defendant Floyd. (Doc. 57, Ex. 11, pp. 131-2). Plaintiff RSH clarified 
this testimony in her affi-davit, stating therein, that defendant  [*8] Floyd 
made her sit on his lap re-peatedly and that he put his arm around her, 
touching her breast in the process. (Doc. 57, Ex. 24, p. 2). Plaintiff RSH 
further stated that de-fendant Floyd threatened to paddle her if she told her 
mother again about him touching her. (Id.).
16. Marsha Odom was a teacher at Monroeville Middle School during the 
relevant school year. (Doc. 57, Ex. 17, Odom Dep., pp. 8-9). On May 5, 2000, 
Ms. Odom moved her class to room 10 so that her regular classroom, room 14, 
could be painted; she did not re-turn to room 14 to teach classes dur-ing the 
remainder of that school year, which was approximately two weeks later. (Id. 
at pp. 52-5, 63).
17. Plaintiff CC testified that one day while she was working on spelling at 
her desk in her classroom (room 14), defendant Floyd grabbed her out of her 
desk and took her to Ms. Odom's empty classroom (room 10); defendant Floyd 
then took off CC's clothes and put his finger inside her and touched her 
breasts. (Doc. 57, Ex. 12, CC Dep., pp. 56, 70-1, 85-6). Defendant Floyd then 
told plaintiff CC to put her clothes on and that if she told anyone what had 
happened, he would put her in jail. (Id. at 70).
18. Plaintiff CC tried to tell  [*9] defendant Payne what had happened right 
after it happened, but he told her to go to her classroom. (Id. at pp. 56, 
118-9).
19. Plaintiff CC told her parents about the incident the next day; they took 
her to the police and reported defendant Floyd's illegal behavior. (Id. at 
pp. 93, 11, 116-7).
20. On May 8, 2000, defendant Payne learned of plaintiff CC's complaints to 
the police when he and Superinten-dent Mixon were summoned to the Dis-trict 
Attorney's Office. (Doc. 52, Ex. 1, Payne Aff., P 26). On that same day, at 
Superintendent Mixon's direc-tive, defendant Payne sent defendant Floyd home 
pending an investigation. Id.. Defendant Floyd has not returned to teach at 
Monroeville Middle School since that date. Id. at P 27.

PROCEDURAL HISTORY 
On August 17, 2000, RSH and CC filed a lawsuit against defendants Board of 
Education, Payne and Floyd in the Southern District of Alabama. In their 
amended complaint (Doc. 13), the plaintiffs allege the defendants vio-lated 
their federal rights under Title IX of the Education Amendments of 1972 (20 
U.S.C. § 1681), and the due proc-ess and equal protection clause of the 
Fourteenth Amendment to the United States Constitution (42 U.S.C. § 1983). 2 
The plaintiffs  [*10] also allege state law claims of invasion of privacy, 
assault and battery, outrage, negligent and/or wanton and malicious training, 
supervision and retention, and false imprisonment. The plaintiffs seek 
declaratory and injunctive re-lief, as well as compensatory and pu-nitive 
damages. For their part, defen-dants deny these allegations generally and 
assert a number of defenses, in-cluding various immunity defenses.

2   As set forth in the case cap-tion, the plaintiffs asserted their claims 
against defendant Payne in his official capacity and in his individual 
capacity. (Doc. 13, P 65).
On September 18, 2001, defendants Board of Education and Payne filed a motion 
for summary judgment with sup-porting brief and evidentiary submis-sions. 
(Docs. 48, 49, & 52). The plaintiffs filed an opposing brief (Doc. 57), to 
which the defendants submitted a reply. (Doc. 61). Defen-dant Floyd filed a 
separate motion for partial summary judgment with support-ing brief (Docs. 50 
& 51), which the plaintiffs opposed (Doc. 58). Defen-dant Floyd also filed a 
reply to the plaintiffs' opposition. (Doc. 62).
On September 28, 2007, this court denied Floyd's motion in its entirety (Doc. 
87, p. 36). As to the other two defendants,  [*11] this court granted summary 
judgment for the Board of Edu-cation and Payne as to the plaintiffs' 
substantive due process claim under § 1983; granted summary judgement for the 
Board of Education and Payne its his official capacity for the remain-ing 
claims under § 1983; and granted summary judgment for the Board of Edu-cation 
as to all claims under state law. This court denied the Board of Education's 
motion for summary judg-ment on the plaintiffs' Title IX claim and denied 
Payne's motion as to the plaintiffs' equal protection claim and their state 
law claim for outrage. (Id.). In particular, this court ruled that Payne was 
not entitled to quali-fied immunity because his lack of ac-tions were not 
within his discretion-ary authority. Payne thereafter ap-pealed.
The United States Court of Appeals for the Eleventh Circuit reversed this 
court's decision in part holding that Payne did act within his discretionary 
authority as principal. However, since this court did not reach the second 
part of the qualified immunity analy-sis, whether the plaintiffs have 
dem-onstrated that Payne's actions vio-lated clearly established 
constitu-tional law, the Eleventh Circuit re-manded the matter to give this 
court the  [*12] first opportunity to apply the qualified immunity test as 
pro-vided in Saucier v. Katz, 533 U.S. 194, 201 (2001). (Doc. 103, p. 8). 
Both the plaintiffs and defendant Payne have filed post-remand briefs 
regarding qualified immunity. (Docs. 108 & 109).

LEGAL ANALYSIS 

A. Summary Judgment Standard 
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be 
granted "if the pleadings, depositions, answers to interrogato-ries, and 
admissions on file, together with the affidavits, if any, show that there is 
no genuine issue as to any material fact and that the moving party is 
entitled to judgment as a matter of law." The trial court's function is not 
"to weigh the evidence and determine the truth of the matter but to determine 
whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 249 (1986). "The mere existence of some evidence to support the 
non-moving party is not sufficient for denial of summary judgment; there must 
be 'suf-ficient evidence favoring the nonmov-ing party for a jury to return a 
ver-dict for that party.'" Bailey v. All-gas, Inc., 284 F.3d 1237, 1243 (11th 
Cir. 2002) (quoting Anderson, 477 U.S. at 249). "If the evidence is merely  
[*13] colorable, or is not signifi-cantly probative, summary judgment may be 
granted." Anderson, at 249-250. (internal citations omitted).
The basic issue before the Court on a motion for summary judgment is "whether 
the evidence presents a suf-ficient disagreement to require sub-mission to a 
jury or whether it is so one-sided that one party must prevail as a matter of 
law." See Anderson, 477 U.S. at 251-252. The moving party bears the burden of 
proving that no genuine issue of material fact exists. O'Ferrell v. United 
States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evalu-ating the argument of 
the moving party, the court must view all evi-dence in the light most 
favorable to the non-moving party, and resolve all reasonable doubts about 
the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 
(11th Cir.1999). "If reasonable minds could differ on the inferences arising 
from undisputed facts, then a court should deny summary judgment." Miranda v. 
B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing 
Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th 
Cir. 1985)).
Once the movant satisfies his ini-tial burden under Rule 56(c), the 
non-moving  [*14] party "must make a suf-ficient showing to establish the 
exis-tence of each essential element to that party's case, and on which that 
party will bear the burden of proof at trial." Howard v. BP Oil Company, 32 
F.3d 520, 524 (11th Cir.1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 
324 (1986)). Otherwise stated, the non-movant must "demonstrate that there is 
indeed a material issue of fact that precludes summary judgment." See Clark 
v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving 
party "may not rest on the mere allegations or denials of the [non-moving] 
party's pleading, but .... must set forth specific facts showing that there 
is a genuine issue for trial." FED. R. CIV. P. 56(e) "A mere 'scintilla' of 
evidence support-ing the [non-moving] party's position will not suffice; 
there must be enough of a showing that the jury could rea-sonably find for 
that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation 
omitted). "[T]he nonmoving party may avail itself of all facts and 
justifiable inferences in the record taken as a whole." Tip-ton v. Bergrohr 
GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). "Where the record taken as a 
whole could not lead  [*15] a rational trier of fact to find for the 
non-moving party, there is no genuine issue for trial." Matsushita Elec. 
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (in-ternal 
quotation and citation omit-ted).

B. Qualified Immunity 
Qualified immunity protects govern-ment officers sued in their individual 
capacities from liability for civil damages so long as their conduct "does 
not violate clearly established statu-tory or constitutional rights of which 
a reasonable person would have known." Vinyard v. Wilson, 311 F.3d 1340, 1346 
(11th Cir. 2002)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 
2727, 73 L.Ed. 2d 396 (1982)). "The purpose of this immunity is to allow 
government officials to carry out their discretionary duties without the fear 
of personal liability or har-assing litigation, protecting from suit all but 
the plainly incompetent or one who is knowingly violating the federal law." 
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)(internal quotation marks 
and citations omit-ted). The inquiry turns on the "objec-tive legal 
reasonableness of the ac-tion, assessed in light of the legal rules that were 
clearly established at the time it was taken." 3 Wilson v. Layne, 526 U.S. 
603, 614, 119 S.Ct. 1693, 143 L.Ed.2d 818 (1999)(internal  [*16] quotation 
marks omitted); see Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 
L.Ed.2d 666 (2002)("[Q]ualified immunity operates to ensure that before they 
are sub-jected to suit, officers are on notice their conduct is unlawful." 
(internal quotation marks omitted)).

3   Defendant Payne asserts that he did not have the subjective intent to 
discriminate against RSH or CC, thus he is entitled to qualified immunity. 
(See Doc. 109, pp. 16-7). Even if this as-sertion were true, his "subjec-tive 
beliefs regarding the cir-cumstances are irrelevant to the qualified immunity 
inquiry." Whittier v. Kobayashi,     F.3d    , 2009 WL 2707174, at *4 (11th 
Cir. Aug. 31, 2009)(citing Harlow v. Fitzgerald, 457 U.S. 800, 817-8, 102 
S.Ct. 2727, 2737-8, 73 L.Ed.2d 396 (1982) (discarding the subjective 
component of the qualified immunity inquiry and adopting the "objective 
reason-ableness" standard)(other cita-tion omitted)).
To receive qualified immunity, the public official "must first prove that he 
was acting within the scope of his discretionary authority when the 
al-legedly wrongful acts occurred." Lee, 284 F.3d at 1194 (internal quotation 
marks omitted). On appeal, the Elev-enth Circuit concluded that Payne  [*17] 
was acting within the scope of his discretionary authority when the alleged 
sexual misconduct occurred, thus this first prong has been satis-fied. (Doc. 
103, p. 7-8). Therefore, "[o]nce the defendant establishes that he was acting 
within his discretionary authority, the burden shifts to the plaintiff to 
show that qualified immu-nity is not appropriate." Vinyard, 311 F.3d at 1346.
In analyzing whether the plaintiff has satisfied this burden, the Elev-enth 
Circuit instructed this court to follow the procedure from Saucier v. Katz, 
533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed. 2d 272 (2001). (See Doc. 103, p. 
8). Saucier mandates a two-step sequence for resolving gov-ernment officials' 
qualified immunity claims. Courts were to first determine "whether the 
plaintiff's allegations, if true, establish[ed] a constitu-tional violation." 
Hope, 536 U.S. at 736 (citing Saucier, 533 U.S. at 201). Only if the 
allegations satisfied this first step did the court then decide whether the 
right at issue was "clearly established" at the time of the defendant's 
alleged misconduct. 4 Saucier, 533 U.S. at 201. In other words, qualified 
immunity is applica-ble unless the officials conduct vio-lated a clearly 
established  [*18] constitutional right. Anderson v. Creighton, 483 U.S. 635, 
640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

4   "Prior to Saucier, the Su-preme Court's cases held that 'the better 
approach to resolving cases in which the defense of qualified immunity is 
raised is to determine first whether the plaintiff has alleged a depriva-tion 
of a constitutional law at all.' Saucier made this 'better approach' the only 
approach." Bash v. Patrick, 608 F.Supp.2d 1285, 1293 n. 4 (M.D.Ala. 
2009)(quoting County of Sacra-mento v. Lewis, 523 U.S. 833, 841 n. 5, 118 
S.Ct. 1708, 140 L.Ed.2d 1043 (1998)).
After the Eleventh Circuit handed down its decision directing this court to 
apply the Saucier procedure, a unanimous Supreme Court in Pearson v. Callahan 
held that the Saucier proce-dure was no longer mandatory. Instead, the 
Supreme Court allowed district court and appellate court judges to "exercise 
their sound discretion in deciding which of the two prongs of the qualified 
immunity analysis should be addressed first in light of the circumstances of 
the particular case at hand."     U.S.    , 129 S.Ct. 808, 818, 172 L.Ed.2d 
565 (2009). Despite this grant of discretion, this court will now follow the 
Saucier procedure  [*19] in determining whether Payne is entitled to 
qualified immunity from the plaintiffs' claim that he violated the Equal 
Protection Clause of the Fourteenth Amendment of the United States 
Constitution by way of 42 U.S.C. § 1983.

1. Whether the plaintiffs' allega-tions, if true, established a 
consti-tutional violation 
It is axiomatic that the Fourteenth Amendment's equal protection clause 
guarantees RSH and CC the right to be free from sexual harassment by a 
teacher. 5 See Sandra T.E. v. Sperlik, 639 F.Supp.2d 912, at 924 (N.D.Ill. 
2009)("If sexual harassment in the workplace violates the Equal Protec-tion 
Clause, then certainly the sexual abuse of female students by a teacher 
violates the Equal Protection Clause."); A.G. ex rel. K.C. v. Autauga County 
Bd. of Educ., 506 F.Supp.2d 927, 941 (M.D.Ala. 2007); Morlock v. West Cent. 
Educ. Dist., 46 F.Supp.2d 892, 918 (D.Minn. 1999)("Courts uniformly recognize 
that sexual harassment by a state actor [,teacher,] violates the 
constitu-tional rights of the recipient [,student,] under the Equal 
Protection Clause."); see also Cross v. Ala. Dep't of Mental Health & Mental 
Retar-dation, 49 F.3d 1490, 1507 (11th Cir. 1995)(Employees "have a 
constitutional right  [*20] [under the Equal Protec-tion Clause] to be free 
from unlaw-ful... sexual harassment in public em-ployment."); Horne v. 
Russell County Comm'n, 379 F.Supp.2d 1305, 1336 (M.D.Ala. 2005)(same).

5   Defendant Payne concedes that "the Fourteenth Amendment may af-ford the 
plaintiffs a right to be free from sexual harassment by teachers in their 
school..." (Doc. 109, p. 10).
Furthermore, a principal can be found to have violated a student's right to 
be free from sexual harass-ment under supervisory liability the-ory. 
Supervisory liability under § 1983 "occurs either when the supervi-sor 
personally participates in the al-leged constitutional violation or when 
there is a causal connection between action of the supervising official and 
the alleged constitutional depriva-tion." This causal connection "may be 
established and supervisory liability imposed where the supervisor... [has a] 
deliberate indifference to consti-tutional rights." Hartley v. Parnell, 193 
F.3d 1263, 1269 (11th Cir. 1999); see also Doe v. Taylor Indep. Sch. Dist., 
15 F.3d 443, 452-3 (5th Cir. 1994)("a supervisor can be liable for 'gross 
negligence' or 'deliberate in-difference' to violations of their 
subordinates."); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d 
Cir. 1988);  [*21] Howard v. Bd. of Educ. of Sycamore Cmty. Unit Sch. Dist., 
893 F.Supp. 808, 817-8 (N.D.Ill. 1995)(holding that the plaintiffs asserted 
an adequate equal protection claim against a principal because the plaintiff 
asserted the principal was notified of harassment and intentionally took no 
action to stop the harassment.).
a. As to Plaintiff RSH
Relying on Davis v. DeKalb County Sch. Dist., 233 F.3d 1367 (11th Cir. 2000), 
6 defendant Payne argues that he did not act with deliberate indif-ference 
after receiving actual notice of the sexual abuse allegations. 7 (Doc. 109, 
pp. 13-5). However, this court concludes that the principal's actions in 
Dekalb County were much more substantial than the actions taken by defendant 
Payne in this case. In Dekalb County, the principal con-tacted his supervisor 
about the report of misconduct after meeting with the student and her 
guardian; the princi-pal then directed the school counselor and the social 
worker to investigate the complaint. Those two individuals separately met 
with the student and with the sole witness identified by the student. The 
principal interviewed the teacher and "discuss[ed] the grav-ity of the 
situation." Following the investigation, the  [*22] principal arranged a 
meeting with the student, her guardian, the social worker, and the teacher, 
during which it was de-termined that any touching was inci-dental. Even the 
student "could not state [at the meeting] that it was sexual in nature." Id. 
at 1373. Never-theless,
 
   With [his supervisor's] approval, [the principal] removed [the student] 
from after-school P.E. class with [the teacher]. [The princi-pal] offered to 
remove [the student] from her regular P.E. class with [the teacher], but [the 
student] wanted to stay in the class. The [student's mother] simi-larly 
rejected [the princi-pal's] offer to transfer [her daughter] to another 
school. [The principal] in-structed [the teacher] to avoid all contact with 
[the student] other than class. [The principal] also forbade [the teacher] 
from being alone with [the student] or any female student. Finally, [the 
principal] informed [the student's mother] that she could contact [the 
prin-cipal's] supervisor if [the mother] thought anything further should be 
done.
[The principal] followed up with [the student] sev-eral times throughout the 
school year, but [the stu-dent] had no further com-plaints. [The principal] 
also monitored [the teacher] for any indiscretions,  [*23] but he never 
observed [the teacher] alone with fe-male students. At least three other 
teachers also testified that they never saw [the teacher] alone with female 
students, and they never witnessed him behave inappropriately around 
stu-dents.

 


6   Defendant Payne also relies on Hartley v. Parnell, 193 F.3d 1263 (11th 
Cir. 1999), stating this case is "remarkably similar to the case at bar" and 
in that case "the Eleventh Circuit ruled that the circumstances there failed 
to establish any violation of equal protection rights." (Doc. 109, p. 13). 
However, un-like Hartley, where the plaintiff did not suffer from any further 
sexual harassment after the prin-cipal was notified of the allega-tions, both 
RSH and CC assert that Floyd harassed them after Payne was notified of the 
alleged harassment of RSH. (See Doc. 57, Ex. 11, pp. 131-2; Doc. 57, Ex. 24, 
p. 2). To the extent that de-fendant Payne asserts that no sexual assaults 
occurred after Payne was put on notice of the alleged abuse, this would be a 
dispute of a material fact, a conflict which is for a jury to decide. 
Miranda, 975 F.2d at 1534 (11th Cir. 1992)("If reasonable minds could differ 
on the infer-ences arising from undisputed facts, then a court  [*24] should 
deny summary judgment."). As a result, defendant Payne's reli-ance on Hartley 
is misplaced.
7   This court has found previ-ously that defendant Payne had received actual 
notice of Payne's alleged sexual abuse on January 21, 2000. (See Doc. 87, pp. 
13-5).
Id. at 1373-4 (footnote omitted).
It is easy to contrast the princi-pal's actions in Dekalb County with 
defendant Payne's actions in this case. As set forth above, after plain-tiff 
RSH's mother told defendant Payne of defendant Floyd's improper behavior on 
January 21, 2000, Payne immediately convened a conference which included 
Floyd and RSH's mother. During the course of that conference, plaintiff RSH 
and another student came in, stated their allegations, and left. Defendant 
Floyd left also, leaving de-fendant Payne and RSH's mother to talk. Defendant 
Payne offered to re-move plaintiff RSH from defendant's Floyd's classroom, 
but RSH's mother (inexplicably) indicated that she did not want that action 
taken; rather, she just wanted defendant Floyd to keep his hands off of her 
daughter - which defendant Payne assured her would be the case.
Defendant Payne talked with defen-dant Floyd, who again denied the 
accu-sations. Subsequently, defendant  [*25] Payne "monitored" defendant 
Floyd's classroom by looking in and observing it as often as he could, but 
this sporadic and limited observation was his only action. Defendant Payne 
stated that he did not interview any other children. Defendant Payne 
admit-ted that, although he was aware of the relevant school board policy, he 
did not comply with it in at least three ways. Namely, defendant Payne did 
not start an immediate investigation into the matter; he did not notify RSH's 
mother or the guardians of the other student of his findings; and he did not 
provide information of the allega-tions to the board superintendent be-cause 
he never conducted a formal in-vestigation. 8 In contrast to Dekalb County, 
defendant Payne did not con-tact his supervisor; he did not for-mally 
investigate the allegations; he did not have any other school person-nel or 
the police investigate the al-legations 9 ; he did not reconvene the parties 
after an investigation; he did not instruct defendant Floyd to avoid all 
contact with plaintiff RSH other than in class; he did not forbid de-fendant 
Floyd from being alone with plaintiff RSH or any of the other fe-male 
students; and he did not tell plaintiff RSH and her mother  [*26] to contact 
his supervisor in the event they thought anything further should be done. 
These distinctions are sub-stantial and critical, and the court concludes 
that defendants' reliance on DeKalb County is misplaced. After due 
consideration, the court concludes that, in viewing the allegations in a 
light most favorable to the plain-tiffs, a jury could find that defen-dant 
Payne was deliberately indiffer-ent to plaintiff RSH's allegations of sexual 
harassment.

8   It is not clear why defendant Payne failed to comply with the policy. The 
record evidence, how-ever, indicates that he did not believe the allegations 
against defendant Floyd made by plaintiff RSH and the male student. How-ever, 
the policy does not contain a provision which suspends the duty to 
investigate and report to the Board if the person taking the complaint does 
not believe the accusation. Rather, the pol-icy bestows the responsibility of 
deciding which party to believe rests with the Board.
9   The record does not explain why defendant Payne did not re-port 
plaintiff's RSH's allega-tions of child sexual abuse to the police.
Additionally, relying on D.A.C. v. Thrasher, 655 So.2d 959 (Ala. 1995), 
defendant Payne asserts that it is un-necessary  [*27] for this court to 
consider whether Payne is entitled to qualified immunity because there is not 
enough sufficient evidence for a jury to find that Payne's failure to abide 
by the school board's policy was the proximate cause of RSH or CC's 
in-juries. (Doc. 109, p. 11-3). Despite this assertion, this court finds that 
there is enough evidence for a reason-able jury to not only find that Payne 
was deliberately indifferent to Floyd's alleged sexual harassment but also to 
conclude that that indiffer-ence proximately caused RSH and CC's injuries. In 
reaching this conclusion, the court cannot say that plaintiff RSH's evidence 
is "merely colorable or is not significantly probative." An-derson, 477 U.S. 
at 249-50.
b. As to Plaintiff CC
Plaintiff CC asserts that she would not have been harassed had defendant 
Payne not been deliberately indiffer-ent to plaintiff RSH's allegations. The 
court's determination that a jury could find that defendant Payne acted with 
deliberate indifference as to plaintiff RSH also means that a jury could find 
that defendant Payne acted with deliberate indifference as to plaintiff CC 
and that this indiffer-ence was a proximate cause of CC's abuse.

2. Whether the right at issue  [*28] was "clearly established" at the time of 
the alleged misconduct 
Since this court has determined that RSH and CC had a constitutional right 
that would have been violation if the allegations were true, "the next, 
sequential step is to ask whether the right was clearly estab-lished." 
Saucier, 533 U.S. at 201, 121 S.Ct. 2151. In other words, before qualified 
immunity is surrendered by Payne, he is entitled to fair and clear warning 
that the challenged con-duct violates federally protected rights. See Hope, 
536 U.S. at 741, 122 S.Ct. 2508 ("The salient question... is whether the 
state of the law... gave [Payne] fair warning that [his] alleged treatment of 
[RSH and CC] was unconstitutional."); Vinyard, 311 F.3d at 1350. 10

10   Defendant Payne asserts that this court should use the legal standard 
prior to 2000 in deter-mining whether a right is clearly established. (See 
Doc. 109, p. 9). However, the courts in this circuit have applied the legal 
standard as established after the date of the incident, and this court shall 
do the same. See e.g., Vinyard, 311 F.3d at 1349-50 (the alleged incident 
occurred in 1998, yet the court applied the legal standard as established in 
2001 and 2002 cases); Lassiter v. Alabama A&M University, Bd. of Trustees, 28 
F.3d 1146, 1149-50 (11th Cir. 1994)(the  [*29] al-leged incident occurred in 
1986, but the court applied the legal standard from a Supreme Court case 
decided in 1987 and an Elev-enth Circuit case decided in 1989).
The Eleventh Circuit identified three categories of fair and clear warning: 
(1) whether the conduct is so egregious that it violates the consti-tution on 
its face, regardless of the absence of authoritative case law; (2) where the 
conduct does not violate the constitution on its face, but case law exists 
which can be applied broadly to various factual situations; and (3) where no 
broad case law applies but there exists precedent which is tied to the facts. 
Vinyard, 311 F.3d at 1350-1. Thus, there need not be a case "on all fours," 
with materially iden-tical facts, before qualified immunity will be denied. 
"A principle of con-stitutional law can be 'clearly estab-lished' even if 
there are 'notable factual distinctions between the precedents relied on and 
the cases then before the Court, so long as the prior decision gave 
reasonable warning that the conduct at issue violated constitutional 
rights.'" Holloman ex rel. v. Harland, 370 F.3d 1252, 1277 (11th Cir. 
2004)(quoting United States v. Lanier, 520 U.S. 259, 269, 117 S.Ct. 1219, 
1227, 137 L.Ed.2d 432 (1997));  [*30] see also Hope, 536 U.S. at 741, 122 
S.Ct. 2508 ("[O]fficials can still be on notice that their conduct violates 
law even in novel factual circumstances. Indeed in Lanier, we expressly 
rejected a re-quirement that previous cases be 'fun-damentally similar.'"). 
Although there are no cases in this circuit before the year 2000 that were 
factually on point, this court concludes that a reasonable person in Payne's 
position could not have believed being deliber-ately indifferent to Floyd's 
conduct was lawful in light of the following clearly established law.
First, it was clearly established in this circuit that a minor had a 
substantive due process right to be free from abuse and that if an offi-cial, 
such as a principal, was delib-erately indifferent to such abuse, such a 
violation was an infringement of that minor's legal rights. In fact, the 
Eleventh Circuit specifically stated that a principal may be held liable 
under the Fourteenth Amendment Substantive Due Process Clause for the sexual 
abuse of a teacher if that principal is deliberately indifferent to that 
abuse. Hartley, 193 F.3d at 1269 ("Supervisory liability [under § 1983] 
occurs... when there is a causal connection between actions of  [*31] the 
supervising official and the al-leged constitutional deprivation... [T]he 
causal connection may be estab-lished and supervisory liability im-posed 
where the supervisor's improper 'custom or policy... result[s] in de-liberate 
indifference to constitu-tional rights."); see also Taylor By and Through 
Walker v. Ledbetter, 818 F.2d 791, 794 (11th Cir. 1987)(holding that a foster 
child can state a 42 U.S.C. § 1983 cause of action under the Fourteenth 
Amendment against state officials if the child is abused after a state 
employee is deliberately in-different to a known and substantial risk to the 
child of serious harm); Does v. Covington County Sch. Bd. of Educ., 930 
F.Supp. 554, 577 (M.D.Ala. 1996)("The issue [in Covington] is not whether, in 
general terms, school of-ficials can violate a student's Four-teenth 
Amendment substantive due proc-ess rights by knowingly failing to take steps 
to eliminate a teacher's sexual harassment of school children or by having 
inadequate training poli-cies and procedures. They can."); C.B. v. Bobo, 659 
So.2d 98, 103-4 (Ala. 1995)(recognized that a student had a substantive due 
process to not be sexually abused and that if a student can prove that the 
principal had  [*32] deliberate indifference toward sexual abuse, then the 
principal may be held personally liable); see also Youngberg v. Romeo, 457 
U.S. 307, 314-325, 102 S.Ct. 2452, 2457-63, 73 L.Ed.2d 28 (1982)(holding that 
the substantive component of the Four-teenth Amendment's Due Process Clause 
requires the State to provide involun-tarily committed mental patients with 
such services as are necessary to en-sure their "reasonable safety" from 
themselves and others.); Stoneking, 882 F.2d at 727 cert. denied 493 U.S. 
1044, 110 S.Ct. 840, 107 L.Ed. 2d 835 (1990)(holding that a principal and 
assistant principal were not entitled to qualified immunity if they were 
de-liberately indifferent to a teacher's alleged sexual abuse).
Second, the Eleventh Circuit has stated that a plaintiff has "a 
consti-tutional right to be free from unlaw-ful sex discrimination and sexual 
har-assment in public employment, and this right is created by the equal 
protec-tion clause of the Fourteenth Amend-ment." Cross, 49 F.3d at 1507. 
Fur-thermore, it was clearly established in this circuit by 2000 that a 
super-visor may be liable under § 1983 for their subordinate's sexual 
harassment if a "responsible supervisor" is "on notice of the need  [*33] to 
correct the alleged deprivation, and he fails to do so." Braddy v. Fla. Dept. 
of La-bor and Employment Sec., 133 F.3d 797, 801-2 (11th Cir. 1998)(quoting 
Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990))(internal quotations 
omit-ted); see Cross, 49 F.3d at 1503 (holding that it was clearly 
estab-lished that a supervisory defendant may be held liable if his response 
to knowledge of his subordinates' wrong-ful sexual harassment is objectively 
unreasonable, even if he has a sincere subjective belief that he is acting 
properly); see also Franklin v. Gwin-nett County Pub. Sch., 503 U.S. 60, 112 
S.Ct. 1028, 117 L.Ed.2d 208 (1992)(holding that employment cases provide 
clearly established law with respect to teacher-on-student harass-ment in 
particular.); 11 Sandra T.E., 639 F.Supp.2d912, at 924 ("If sexual harassment 
in the workplace violates the Equal Protection Clause, then cer-tainly the 
sexual abuse of female stu-dents by a teacher violates the Equal Protection 
Clause.").

11   In Franklin, a high school student brought a Title IX action for alleged 
gender-based dis-crimination arising from alleged sexual harassment and abuse 
by a school sports coach and teacher. In holding that the implied  [*34] 
right of action under title IX supported a claim for monetary damages, the 
Supreme Court pointed out that "when a supervi-sor sexually harasses a 
subordi-nate because of the subordinate's sex, that supervisor 
'discimi-nate[s]' on the basis of sex." 503 U.S. at 75, 112 S.Ct. 1028 
(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 
91 L.Ed.2d 49 (1986)). The Court then stated its belief that "the same rule 
should apply when a teacher sexu-ally harasses and abuses a stu-dent." Id.. 
Thus the Court clearly indicated in 1992 that the same sexual harassment 
stan-dards apply in both the employ-ment context as issue in Meritor and in 
the teacher-on-student sexual harassment at issue in Franklin.
Third, it was clearly established at the time of the alleged incident in this 
case that a student had a right to be free from sexual harassment by a 
teacher under Title IX and that a school district may be held liable in 
damages if an official of the school district, for example a principal, "who 
at a minimum has authority to in-stitute corrective measures on the 
district's behalf has actual notice of, and is deliberately indifferent to, 
the teacher's misconduct." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 
274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998);  [*35] see also Franklin, 
503 U.S. at 74-5, 112 S.Ct. 1028 (establishes that a school dis-trict can be 
held liable in damages under Title IX in cases involving a teacher's sexual 
harassment of a stu-dent.). At the time of the alleged in-cident, the Board 
of Education had a policy against sexual harassment, a policy which required 
a principal to start an immediate investigation upon receiving a sexual 
harassment com-plaint, mandated that superintendent or designee of 
superintendent and le-gal counsel review the completed in-vestigation, and 
established that a written response be provided to the parents of the student 
and the stu-dent. (See Doc. 57, Ex. 14, Payne Dep., Ex. 11). Payne admitted 
that at the time of the incident he was aware of this policy. (See Id., Payne 
Dep., pp. 39-43).
In light of the clearly established law described above, this court 
con-cludes that a reasonable principal would have known in January of 2000 
that being deliberately indifferent to a teacher's sexual harassment of a 
student would give rise to a violation of that student's equal protection 
rights. Therefore, defendant Payne is not entitled to qualified immunity 
be-cause, if the allegations are true, his conduct would  [*36] violate 
clearly established statutory or con-stitutional rights of which a 
reason-able person would have known.

CONCLUSION 
For the foregoing reasons, defen-dant Payne's motion for summary judg-ment 
(Doc. 48) is DENIED on plain-tiffs' § 1983 equal protection claim against 
Payne in his individual capac-ity. As a result, the following causes of 
action remain to be tried: