NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 6, 2014
Decided July 9, 2014
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13‐3701
RICKEY L. DAVIS and SHERONDA Appeal from the United States District
DAVIS, next best friends of M.D., Court for the Southern District of
Plaintiffs‐Appellants, Indiana, Indianapolis Division
v. No. 11‐cv‐00771
CARMEL CLAY SCHOOLS, Sarah Evans Barker, Judge.
Defendant‐Appellee.
O R D E R
Four high school basketball players who were seniors mistreated a freshman in
the varsity locker room at Carmel High School and while on a bus trip. Alleging both
federal and state claims, the parents of the freshman brought this action in federal court
against the high school. The high school moved for partial summary judgment with
No. 13-3701 Page 2
respect to the federal claims. The district court granted that motion and entered final
judgment against the plaintiffs with respect to the federal claims, pursuant to Rule 54(b)
of the Federal Rules of Civil Procedure. The plaintiffs appeal. We affirm.
I. Facts
During the 2009–10 school year, M.D. was a freshman at Carmel High School
(“the School”). Because of his poor academic performance, he was ineligible to play on
the School’s basketball team, but the freshman basketball coach, Justin Blanding, agreed
to help M.D. with his studies and encouraged him to spend time with the team.
Although the School has a separate locker room for the freshman basketball team, M.D.
testified that the varsity team manager (a student) assigned him a locker in the varsity
basketball teams’ locker room.
M.D. testified that, from November 2009 to January 2010, four senior basketball
players (“the four seniors”) harassed and assaulted him. M.D. testified, specifically, that
the four seniors taunted him with sexual innuendos, grabbed (or tried to grab) his
genitals, and flashed their own genitals at him on a nearly daily basis. He also testified
that the four seniors “gooched” him a few times.1 During one such incident, M.D.
testified, the four seniors dragged him into the shower, tried to force his pants down,
and then “gooched” him. M.D. testified that he screamed for help but that none of the
other basketball players helped him. M.D. testified that he told the four seniors that
“what they were doing was gay,” but that they retorted, “it wasn’t gay unless you
cum.” During another “gooching” incident, M.D. testified that one of the four seniors
repeated that remark. M.D. also testified that one of the four seniors brushed his
genitals against M.D. while simulating sex on more than one occasion. M.D. testified
that he began wearing two pairs of shorts to make it harder for the four seniors to
assault him.
On January 22, 2010, M.D. traveled with the School’s basketball teams to Terre
Haute, Indiana. On the ride back, three of the four seniors who had been harassing M.D.
were seated at the back of the bus, and M.D. was seated near the front behind the
1
The plaintiffs define “gooching” as “putting a person’s hands or fingers between
the buttocks of another person, and at times anally penetrating the person.” But it is
unclear whether the various witnesses in this case so understood the term.
No. 13-3701 Page 3
coaches. M.D. testified that the three seniors started calling his name and that, while he
initially ignored them, he eventually went to the back of the bus. M.D. testified that he
was dragged down onto a seat, someone sat on his face, someone tried to pull down his
pants, and one of the four seniors tried to stick his finger in or through M.D.’s pants.
M.D. testified that he was then dragged to the ground and that, when he tried to move
back to the front of the bus, other players blocked him with their legs. M.D. also
testified that he screamed or called for help.
On February 16, 2010, the mother of another student called a nurse at the School
and stated that she had learned from her son that M.D. had been assaulted on the bus
ride back from Terre Haute. The allegations were forwarded to the School’s
administration and reported to the Carmel Police Department. Both the School and the
police immediately began investigations. That day, three of the four seniors were
suspended. Some days later, the fourth senior was suspended. Eventually all four
seniors were expelled. Nevertheless, M.D.’s father decided to withdraw M.D. from the
School because (he alleges) he was told by School administrators that three of the four
seniors would be re‐enrolled.
On June 7, 2011, M.D.’s parents, in their individual capacities and on behalf of
M.D., sued the School in the United States District Court for the Southern District of
Indiana.2 The complaint asserted claims arising under federal and state law. The School
filed a motion for partial summary judgment and sought dismissal of the federal claims.
The district court granted that motion, but elected to retain supplemental jurisdiction
over the remaining state law claims. Pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure, the district court entered final judgment against the plaintiffs with respect to
the federal claims. This enabled the plaintiffs to appeal the order dismissing the federal
claims, which they have done.3
2
The plaintiffs also filed a state court action against the four seniors.
3
In their appeal, the plaintiffs initially purported to raise challenges to the district
court’s decision to retain supplemental jurisdiction over the state claims and resolution of
a separate motion for sanctions filed by the plaintiffs. However, after the School objected
that those rulings were not within the scope of the district court’s Rule 54(b) order, the
plaintiffs filed a motion to voluntarily dismiss the appeal insofar as it extended to those
(continued...)
No. 13-3701 Page 4
II. Discussion
On appeal, the plaintiffs urge us to reverse the district court’s grant of summary
judgment with respect to the federal claims. We review the district court’s grant of
partial summary judgment de novo. JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th
Cir. 2007). And we construe the evidence in the light most favorable to the non‐moving
party—here, the plaintiffs. Id. Nevertheless, we must affirm if there is no genuine issue
of material fact, and the School is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a).
Although the complaint is not entirely clear, the parties agree that the plaintiffs
assert the following four federal claims: (1) an equal protection claim under § 1983; (2) a
due process “state‐created danger” claim under § 1983; (3) a “failure‐to‐train” claim
under § 1983; and (4) a “peer‐harassment” claim under Title IX.
All of these claims ultimately fail for substantially the same reason: because the
admissible evidence does not establish that the School actually knew about the four
seniors’ mistreatment of M.D. until after the mistreatment ceased (and shortly before
the School began its investigation).
To establish actual knowledge, the plaintiffs rely heavily on notes taken by the
School’s then‐assistant principal, Kevin Gallman. He took the notes during interviews
of students and parents that he conducted as part of the School’s investigation into the
allegations that M.D. had been assaulted on the bus. Relatedly, the plaintiffs rely on
Gallman’s subsequent deposition testimony (given after he was no longer an employee
of the School) about the investigation.4 The problem with Gallman’s notes and
3
(...continued)
additional orders. We granted that motion “to the extent that this court will not consider
any arguments that are outside the scope of the appeal from judgment on the federal
claims.” Doc. #27. So we do not address the plaintiffs’ challenges to those orders here.
4
According to these notes, one of the four seniors stated that Coach Christopher
Vandenberg had previously referred to “gooching” and laughed about it without telling
the students to stop. The senior disclaimed any personal responsibility for “extreme
(continued...)
No. 13-3701 Page 5
deposition testimony is that they are only valuable as evidence of the School’s actual
knowledge to the extent they recount the statements of the individuals that Gallman
interviewed. The district court ruled that Gallman’s notes and deposition could not be
considered at summary judgment because they were either unreliable unsworn
affidavits or inadmissible hearsay. In their reply brief, the plaintiffs argue that the notes
are admissible under Rule 803(6) of the Federal Rules of Evidence (the “Business
Records” exception). However, the plaintiffs did not make this argument or otherwise
challenge the district court’s ruling in their opening brief on appeal. Therefore, they
have forfeited any challenge to that ruling. See United States v. Banas, 712 F.3d 1006, 1010
n.1 (7th Cir. 2013) (observing that arguments not raised in an appellant’s opening brief
are forfeited).5 Moreover, even if Gallman’s hearsay notes were admissible under Rule
803(6), the hearsay statements of the students and parents contained within those
hearsay notes would not be admissible. See Woods v. City of Chi., 234 F.3d 979, 986 (7th
Cir. 2000) (“‘[T]he business records exception does not embrace statements contained
within a business record that were made by one who is not a part of the business if the
4
(...continued)
circumstances,” but stated that Coach Vandenberg told them during practice “you guys
are touching other people’s butts, that’s weird and you need to stop.” The senior also stated
that “it” had been going on for three years, the coaches condoned it, and that “Galloway
and other coaches knew about it and smirked and didn’t stop it.” Finally, the senior stated
that another student reported to Coach Vandenberg what had happened on the bus. That
senior’s mother told Gallman that the senior himself had been a victim of “hazing
incidents” the prior year. Another one of the four seniors told Gallman that “horseplay and
joking around” were part of “the culture of the program,” and that touching other
students’ butts was not confined to the bus but had already happened in the locker room.
The senior also stated that “messing around” entailed “[t]ickling, making [the victims] feel
uncomfortable, grabbing their butt,” and sticking one’s fingers up the victim’s butt.
(However, the senior also stated that, although it was not the first year this had happened,
these seniors had taken it to another level.)
5
In their opening brief, the plaintiffs relied upon this evidence without informing
us that the district court had ruled that the evidence was inadmissible. Although this may
suggest an implied challenge to the district court’s evidentiary ruling, it strikes us as
gamesmanship. Ignoring adverse rulings is not to be condoned. And we will not reward
the plaintiffs by holding that to ignore a ruling on appeal is to impliedly challenge it.
No. 13-3701 Page 6
embraced statements are offered for their truth.’” (quoting United States v. Vigneau, 187
F.3d 70, 75 (1st Cir. 1999))). Thus, we cannot consider this evidence in determining
whether the School had actual knowledge of the assaults against M.D.
Turning to the plaintiffs’ admissible evidence, Coach Vandenberg testified that
another student, M.F., told Coach Vandenberg that the student and one of the four
seniors had gotten into an altercation. But this evidence does nothing to establish that
the School had actual knowledge that sexual assaults were occurring (much less
knowledge of the assaults against M.D.). This is so because Coach Vandenberg testified
that he asked M.F. if everything was alright and whether he and the senior were still
friends and that M.F. replied “yes” and that there was no problem.
The plaintiffs also rely on the School’s Coaches Handbook’s requirement that
coaches be present in the locker rooms while students are using them. If the coaches
had complied with the Coaches Handbook, the plaintiffs reason, then they should have
observed the assaults committed against M.D. But this argument only establishes that
the coaches should have known of the assaults against M.D, which is not enough to
establish actual knowledge of the assaults. Indeed, Coach Vandenberg and Coach
Blanding testified that they never observed any assaults on M.D. (or any other student).
The evidence that the coaches should have been in the locker room does not contradict
the coaches’ testimony that they did not actually know of the assaults. (Instead it tends
to prove that the coaches likely were not present in the locker rooms when the assaults
occurred.) Consequently, this evidence does not create a material dispute of fact
regarding the School’s actual knowledge of the four seniors’ mistreatment of M.D.
Similarly, M.D. testified that he screamed or called for help when being assaulted
at the back of the bus. However, he admitted that even he could not hear what was
going on at the back of the bus from his seat, which was closer to the back of the bus
than the coaches’ seats, and that someone sat on his face during the assault. So this
evidence at most provides a basis for inferring that the coaches at the front of the bus
should have known about the assault while it was occurring. Again, that is insufficient to
establish actual knowledge. Moreover, Coach Blanding testified that the bus was very
loud and that he did not observe anything to suggest that any hazing, physical abuse, or
sexual abuse was occurring on the bus. Similarly, Coach Vandenberg testified that he
never noticed unacceptable conduct during a bus ride. The plaintiffs offer no evidence
No. 13-3701 Page 7
contradicting the coaches’ testimony that they did not actually observe the assault on
the bus.
Finally, M.D. testified that he spoke to Coach Blanding once about what the four
seniors were doing to him. M.D. testified that he was in Coach Blanding’s office with
one of the four seniors who had assaulted him, and that the senior “made a comment
referring to Lubriderm.” M.D. testified that Coach Blanding told everyone else (except
one person) to leave the room and asked M.D. what the senior was talking about. M.D.
testified that he told Coach Blanding “they were messing with me on the back of the bus
on the way home, and they were messing with me in the locker room.” When Coach
Blanding “asked what,” M.D. replied “they were fingering me in my behind.” M.D.
testified that this conversation occurred after the incident on the bus (and that no
further mistreatment occurred after the incident on the bus), but M.D. did not specify
the precise date of this conversation.6
In summary, at best, the plaintiffs’ evidence establishes that the School
developed actual knowledge of the four seniors’ mistreatment of M.D. only after the
mistreatment ceased. Thus, the plaintiffs’ Title IX “peer‐harassment” claim fails because
the School can only be liable for failing to prevent harassment about which (or, more
precisely, the risk of which) it has actual knowledge. See Gabrielle M. v. Park Forest‐Chi.
Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 823–24 (7th Cir. 2003) (holding, in a
“peer‐harassment” claim brought under Title IX, that a school district cannot be liable
for harassment occurring prior to the date the district obtains actual knowledge of the
harassment); see also Soper v. Hoben, 195 F.3d 845, 855 (6th Cir. 1999) (defendants had
actual notice of rape and sexual assault only after incidents were reported to them).
Similarly, the plaintiffs’ § 1983 “state‐created danger” and equal protection
claims fail because the School could not be deliberately indifferent in failing to protect
M.D. from mistreatment about which it lacked actual knowledge. See Jackson v. Indian
Prairie Sch. Dist. 204, 653 F.3d 647, 654–55 (7th Cir. 2011) (holding that, in a “state‐
6
The plaintiffs allege that this meeting occurred on February 8, but they cite no
evidence in support of that assertion. In his affidavit, Coach Blanding denies that he had
this conversation with M.D. at all. But because we are reviewing a grant of summary
judgment in the School’s favor, we must accept M.D.’s testimony that the conversation did
occur.
No. 13-3701 Page 8
created danger” claim brought under § 1983 and based on the state’s failure to protect
an individual from harm by private actors, the plaintiff must demonstrate that the state
acted with deliberate indifference to the rights of an individual); Nabozny v. Podlesny, 92
F.3d 446, 454 (7th Cir. 1996) (holding that, in an equal protection claim against a school
district brought under § 1983 and based on student‐on‐student sexual battery, proof of
negligence is not enough and that the plaintiff must show that the school district “acted
either intentionally or with deliberate indifference” in denying him the protection that
the school had a policy of extending to other students); see also Tesch v. Cnty. of Green
Lake, 157 F.3d 465, 476 (7th Cir. 1998) (“‘[I]t is not enough to show that a state actor
should have known of the danger his actions created. Rather, a plaintiff must
demonstrate that the defendant had actual knowledge of impending harm which he
consciously refused to prevent.’” (quoting Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996))).
Finally, the plaintiffs’ § 1983 “failure‐to‐train” claim also requires proof that the
School acted with deliberate indifference to M.D.’s rights—specifically by failing to train
the teachers and coaches adequately to prevent the violation of M.D.’s rights. See Jenkins
v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007) (holding that, in a “failure‐to‐train” claim
brought under § 1983, “a municipality may be directly liable for constitutional
violations by its officers when the municipality evinces a deliberate indifference to the
rights of the plaintiff by failing to train adequately its officers to prevent the violation
… .”). As relevant here, evidence of a repeated pattern or widespread practice of
constitutional violations that makes the need for further training plainly obvious to the
School’s administration can establish deliberate indifference on the part of the School.
Id. But because the School did not learn of the assaults against M.D. until after they
occurred (and the plaintiffs do not come forward with sufficient evidence of a
widespread pattern or practice of similar constitutional violations),7 the School’s
administration had no basis to think its training was obviously inadequate and,
consequently, the School cannot be liable under a “failure‐to‐train” theory.
7
The plaintiffs contend that the School received a report of a sexual assault against
a student on the swimming team in 1998. But a single prior violation, especially one so
remote in time, cannot establish a repeated pattern or widespread practice of constitutional
violations. See Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008) (holding that four
violations was insufficient to establish a pattern).
No. 13-3701 Page 9
Moreover, no reasonable jury could find that the School’s response—an
investigation that commenced (at most) about a week after M.D.’s alleged report to
Coach Blanding—“was clearly unreasonable in light of the known circumstances … .”
Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649 (1999). After
all, M.D. suffered no further mistreatment after his alleged report to Coach Blanding or
after the School began its investigation.
III. Conclusion
Because the plaintiffs have failed to come forward with evidence from which a
reasonable fact finder could find that the School had actual knowledge of the four
seniors’ mistreatment of M.D. before it ceased, we AFFIRM the district court’s order
granting the School’s motion for partial summary judgment with respect to the
plaintiffs’ federal claims.