The opinion of the court was delivered by: Conti, District Judge
In this memorandum order, the court considers the motion for summary judgment filed by defendants the Southeastern Greene School District ( the "school district"), Richard Hauger ("Hauger"), and Philip Savini ("Savini)(referred to collectively as "defendants"). After considering the joint statement of material facts, the respective motions and briefs submitted by the parties, the court will grant defendants' motion in part by dismissing plaintiff's due process claim against all defendants and will deny the remainder of defendants' motion for the reasons set forth.
In the 2002-2003 school year plaintiff Michael Doe ("Michael" or "plaintiff") was a seventh grade student in Mapletown High School ("MHS") in the school district. Joint Statement of Material Facts ("J.S.") ¶ 1. Savini is the superintendent for the school district. J.S. ¶ 2. Hauger is the principal of MHS. Id. ¶ 3.
Prior to attending MHS, plaintiff attended Bobtown Elementary School for the fifth and sixth grades. Id. ¶ 4. Michael was teased during the fifth grade due to his weight. Id. ¶¶ 5, 48. Michael was not in the same classes with his tormentors in the sixth grade. Id. ¶ 49. Michael began attending MHS in the seventh grade. Id. ¶ 6. Michael was teased again in the seventh grade. Id. ¶ 50. Michael had all of his classes with his previous tormentors during the seventh grade year at MHS. Id. ¶ 51.
Early in the school year, five to seven boys were bothering Michael. Id. ¶ 9. During the seventh grade year, Michael, during the homeroom period, told a friend that he was gay. Id. ¶ 7. Upon hearing the information, Michael's friend repeated it in a loud voice so that other students could hear it. Id. The teasing and harassment of Michael escalated substantially after this event. Id. ¶ 8.
Michael was teased because of his sexuality. Id. ¶ 13. Two boys, Brandon G. ("Brandon") and Craig J. ("Craig") continued to bother Michael. Id. ¶ 11. Michael was called a "faggot" and his tormentors teased him by referring to a "gay dance." Id. ¶ 14. Brandon and Craig repeatedly asked Michael for a "blow job" or to "make out." Id. ¶ 53. They pretended to masturbate in front of him, exposed themselves to him, and sexually touched him. Id. Brandon jabbed Michael in the buttocks with a pencil. Id. Brandon also placed his hand in his own pants and then rubbed his hand in Michael's face. Id. Brandon and Craig threatened to beat Michael. Id. Craig tried to show Michael his penis and asked him to "make out" before Michael's last day of school in November 2002. Id.
In September and October 2002, Michael reported the abuse to two of his teachers, Mrs. Jeffreys ("Jeffreys") and Mr. Mikalik ("Mikalik"). Id. ¶ 58. Most of the abuse was taking place in Jeffreys' and Mikalik's classrooms. Id. Michael complained to Hauger about the abuse five or six times. Id. ¶ 59. Michael told Hauger about Brandon pretending to masturbate and actually masturbating in class and "trying to expose himself to Michael and all the other girls." Id. Michael also told Hauger that Craig was doing the same things. Id. Michael's mother, Rachel Doe ("Rachel"), also spoke with Hauger four or five times about the same issues. Id. ¶ 60. Rachel first spoke to Hauger a few days after Michael received a note reading "die faggot" in his locker at school. Id.
After Michael was stabbed in the buttocks by Brandon in early November 2002, Michael explicitly told Hauger that some of his classmates were masturbating in front of him, exposing themselves to him, and asking for "blow jobs." Id. ¶ 61. Hauger recalled these conversations. Id. ¶ 62.
Rachel went to a school open house on November 13, 2002, and complained to Michael's teachers about the abuse. Id. ¶ 69. Two teachers said there was nothing that they could do. Id. Another teacher said that if Michael would be more manly and stand up to his tormentors, then maybe they would not pick on him. Id. Rachel told one of Michael's teachers, Mrs. Smearchek ("Smearchek"), that several girls were also being tormented by the same boys. Id. ¶¶ 16, 69.
Smearchek, the very next day, asked girls that had experienced harassment to come forward and report it. Id. The school district immediately commenced an investigation. Id.
When Michael discovered that an investigation was underway into the girls' complaints, while his repeated harassment were not addressed, he wrote: "This is an OUTRAGE! I have been constantly going to the office repeatedly for verbal bashing and sexual harassment and these girls go ONCE and they've got the school board in here!!!!" Id. ¶ 70. Michael described himself as going "totally berserk" over the injustice, but also stated, "I've found out that the girls have been having the same problem as me." Id.
The school district asked a constable to conduct an investigation. Id. ¶ 17. Upon completion of the investigation, criminal charges were filed against Brandon and Craig. Id. At one point, Michael wrote: "It's gotten to the point where I can hardly concentrate on my school work, and I'm afraid to got to school because I fear for my safety." Id. ¶ 68.
On November 18, 2002, Brandon and Craig were suspended for ten days and expulsion proceedings were initiated. Id. ¶ 18. On that same date, attorney Sally L. Apter ("Apter") wrote to the school district and asked that Michael be returned to school and changed to a different class or group. Id. ¶ 31. On November 19, 2002, Michael was admitted to a hospital for treatment of depression and suicidal ideations. Id. ¶ 23. On November 22, 2002, Michael attended his last day of school at MHS. Id. ¶ 22. Michael told the intake workers at River Park Hospital that "I'm here because a couple of kids at school are gay bashing." Id. ¶ 24. On November 25, 2002, Michael informed his family doctor, Dr. Byron, that he planned to try to return to school the next day. Id. ¶ 25.
On November 27, 2002, the school district received a fax from River Park Hospital stating that Michael should be transferred to another school, or, as a second choice, receive homebound education. Id. ¶¶ 32, 75.
On December 11, 2002, Rachel, Michael's mother, sent a letter to the school district requesting due process for Michael to determine where he should be placed for schooling. Id. ¶ 33. Rachel asked for due process, even though she did not understand what it was, because an attorney told her to write a letter and request it. Id. ¶ 34-35. Rachel followed the request for due process with an inquiry regarding the school district's "Gifted Program." Id. ¶ 36. The school district proved the information. Id. ¶ 36. On December 6, 2002, Rachel submitted a request for homebound instruction for Michael along with a supporting note from Dr. Byron. Id. ¶ 38. Dr. Byron's note mistakenly referred to home schooling, not homebound instruction. Id. ¶ 39. A second request was submitted. Id. ¶ 40. The second request contained another note from Dr. Byron requesting homebound instruction for the remainder of the school year. Id. ¶ 40.
At that time, the school district had adopted a policy regarding homebound instruction. Id. ¶ 41. The policy provided for five hours of homebound instruction per week or twenty hours per month. Id. ¶ 42. Basil Zaycosky ("Zaycosky") was assigned to be Michael's homebound instructor. Id. ¶ 43. On December 13, 2002, Hauger told Zaycosky that homebound instruction for Michael was approved and directed him to contact Rachel and begin homebound instruction. Id. ¶ 44. Hauger also instructed Michael's teachers to contact his mother to discuss his academic progress with her. Id. ¶ 46.
During the time between the suspension and the conclusion of expulsion proceedings, Brandon's and Craig's teachers were instructed to monitor closely their classroom behavior and submit a written report. Id. ¶ 19.
Craig agreed to withdraw from MHS and transfer to another school. Id. ¶ 20. Brandon elected to proceed to an expulsion hearing. Id. ¶ 21. ...