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I.G. v. Board of Education of Aztec Municipal School District

United States District Court, D. New Mexico

September 30, 2018

I.G., a minor, by and through his parents and next friends, R.G. and L.G., Plaintiffs,
v.
BOARD OF EDUCATION OF THE AZTEC MUNICIPAL SCHOOL DISTRICT; KIRK CARPENTER; KIMBERLY GARCIA; SHANE KIRKLAND, Defendants.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendants Board of Education of the Aztec Municipal School District, Kirk Carpenter and Kimberly Garcia's Motion to Dismiss and for Qualified Immunity and Memorandum in Support Thereof (Doc. 8), filed February 14, 2018. In the Motion, the Board of Education of the Aztec Municipal School District (“School Board”), Kirk Carpenter, and Kimberly Garcia (collectively “School Defendants”) argue that all claims brought against them in Plaintiffs' Complaint for Damages for Deprivation of Civil Rights, Personal Injuries, New Mexico Tort Claims Act Violations, and Violations of New Mexico Common Law (Doc. 1-2), filed February 7, 2018 should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. (Doc. 8 at 1, 2-3, 7-34.) Additionally, as to the Section 1983 claims brought against Ms. Garcia and Mr. Carpenter in their individual capacities, Defendants seek dismissal on qualified immunity grounds. (Id.) Finally, School Defendants argue that any claims brought by R.G. and L.G. (the parents of the minor Plaintiff) on their own behalf should be dismissed. (Id.) Having considered School Defendants' arguments, the record, and the relevant law, the Court concludes that their Motion to Dismiss shall be granted in part and denied in part.

         I. LEGAL STANDARDS

         Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This pleading standard “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement required by Rule 8(a)(2) must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2003) (per curium).

         The Court may dismiss a complaint under Rule 12(b)(6) if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Ramirez v. Dep't of Corr., Colo., 222 F.3d 1238, 1240 (10th Cir. 2000) (quotation omitted). A complaint will withstand a motion to dismiss under Rule 12(b)(6) if it contains allegations of fact which, taken as true, “state a claim to relief that is plausible on its face.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007). “In determining the plausibility of a claim, [the Court] look[s] to the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard [does not] require a plaintiff to set forth a prima facie case for each element. The nature and specificity of the allegations required to state a plausible claim will vary based on context. But mere labels and conclusions and a formulaic recitation of the elements of a cause of action will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Safe Streets All. V. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (internal quotation marks and citations omitted). “Thus, a claim is facially plausible if the plaintiff has pled factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         For the purpose of ruling on School Defendants' motion to dismiss, the Court assumes that the following facts, taken from the complaint, are true.

         Plaintiff I.G. is a minor, a resident of San Juan County, New Mexico, and during the time frame relevant this lawsuit, he was a student at Aztec High School, in Aztec, New Mexico. (Doc. 1-2 at ¶¶ 1, 10, 21.) Defendant Shane Kirkland, an employee of Defendant Aztec Municipal School District (the School District), was I.G.'s theater teacher. (Id. at ¶¶ 2, 13.) Defendant Kimberly Garcia, also an employee of the School District, is an administrative assistant/secretary at Aztec High School. (Id. at ¶ 5.) Defendant Kirk Carpenter, is the superintendent of the School District, and in that capacity, he is the final decision maker and policy maker for the School District with authority to hire teachers, administrative assistants, and employees of the athletic program. (Id. at ¶ 3.) Mr. Carpenter was also the immediate supervisor of Defendant Kirkland and is Ms. Garcia's direct supervisor. (Id. at ¶ 3.)

         The events giving rise to this lawsuit occurred between April 27, 2016 and September 26, 2016. (Id. at ¶ 13.) Beginning in April 2016, Defendant Kirkland began “grooming” I.G. for sexual abuse during and after school hours. (Id.) The grooming entailed Defendant Kirkland keeping I.G. long after school was out relying on the High School theater program as pretext, and showing his erect penis to I.G. (Id.) Defendant Kirkland would send I.G. home with “signed excuses” regarding I.G.'s whereabouts in furtherance of his efforts to groom and sexually abuse I.G. (Id.) Eventually, Defendant Kirkland brought I.G. to his house and sexually abused him. (Id.) Although it is unclear how many instances of sexual abuse occurred at Defendant Kirkland's home, on at least one occasion, Defendant Kirkland took I.G. from school to his house during school hours for that purpose. (Id.)

         Defendant Kirkland had a history of “inappropriate social media postings, constant mixing of school and personal business, including, but not limited to, sending students out with his credit cards to buy personal items.” (Id. at ¶ 14.)

         I.G.'s grades suffered because he was sexually abused by Defendant Kirkland. (Id. at ¶ 15) The School District and Mr. Carpenter maintain a grades-related eligibility requirement for students who wish to participate in sports. (Id..) The School District and Mr. Carpenter refused to exempt I.G. from the grades-related eligibility requirement, therefore making it “impossible for I.G. to participate in school athletic activities.” (Id.) I.G.'s ineligibility to participate in sports exacerbated the humiliation and “emotional abuse” that I.G. experienced in connection with the sexual abuse.[2]

         Defendant Kirkland was charged with two counts of criminal sexual penetration of a minor arising out of the sexual abuse that he committed against I.G. (Id. at ¶ 16.) The day before Defendant Kirkland's first scheduled court appearance related to these criminal charges, Ms. Garcia sent a text message to the president of the High School's junior class requesting that he gather as many students as possible and make signs supporting Defendant Kirkland. (Id.) Ms. Garcia's purpose was to intimidate I.G. and to interfere with or publicly influence the outcome of Defendant Kirkland's preliminary hearing. (Id.) In her text message to the junior class president, Ms. Garcia referred to I.G. as a “butt head.” (Id.) Ms. Garcia's text message also instructed students as to how they could obtain an excuse from school to attend the preliminary hearing. (Id.)

         The junior class president posted Ms. Garcia's text message on Snapchat and on Instagram (on which site the student had over 1100 followers most of whom were students at Aztec High School), and urged other students to attend Defendant Kirkland's preliminary hearing. (Id.) At least two dozen Aztec High School students attended Defendant Kirkland's preliminary hearing and carried signs demonstrating their support for him. (Id.) These students were so disruptive to the court proceedings that the judge was forced to close the hearing. (Id.) Additionally, in response to this disruption, the San Juan County Deputy District Attorney stated that it appeared that the students “were attempting to intimidate the victim [and] that had a negative impact on the administration of justice.” (Id.)

         When Mr. Carpenter learned about Ms. Garcia's text message, he defended Ms. Garcia and “supported her right to ‘act as an individual.'” (Id. at ¶ 18.) Mr. Carpenter also stated that the school would conduct an investigation to determine whether Ms. Garcia had violated school district policy. (Id.) Plaintiffs have not received further information regarding the status or results of the investigation; however, neither Defendant Kirkland nor Ms. Garcia was disciplined. (Id. at ¶¶ 18-19.) Almost all of this information was published in an article in the Aztec newspaper, The Daily Times, on Sunday, September 25, 2016. (Id. at ¶ 20.) The community of Aztec recognized that Plaintiffs were the subject of the article. (Id.)

         The compounded effects of the sexual abuse perpetrated against I.G. by Defendant Kirkland and the intimidation and public humiliation suffered by I.G. and his family as a result of Defendants' aforementioned actions led I.G. to quit Aztec High School and attend high school in another state. (Id. ¶ 21.)

         Based upon the foregoing, Plaintiffs filed a nine-count Complaint claiming: (1) that Defendants' actions violated I.G.'s Fourteenth Amendment right to due process; (2) that as a result of the School District's and Mr. Carpenter's failure to adequately supervise Defendant Kirkland and Ms. Garcia, I.G. was deprived of his Fourteenth Amendment right to bodily integrity; (3) that the School District's failure to adopt, publish and promulgate appropriate policies regarding harassment and sexual abuse deprived Plaintiffs of benefits under Title IX, and subjected them to discrimination in violation of the same; (4) that Defendants, acting under color of state law, conspired and agreed to deprive Plaintiffs of their Fourteenth Amendment right to be free from intrusions into their bodily integrity and reputation; (5) that the School District, Mr. Carpenter and Mr. Garcia intentionally violated I.G's rights of privacy under the Educational Rights and Privacy Act of 1974 and its state analog, NMSA 1978, Section 24-1-20, which prohibit the disclosure of private information concerning students' health; (6) that, contrary to the New Mexico Tort Claims Act, Defendants violated their duty of reasonable care in regard to the maintenance of school premises, and failed to implement proper safety policies and protocols which failure created a dangerous condition on the premises; (7) that contrary to the New Mexico Tort Claims Act, the School District and Mr. Carpenter breached their duty of ordinary care in regard to screening, hiring, training, supervising, and monitoring employees to ensure they were competent to reasonably care for students; (8) that, contrary to the New Mexico Tort Claims Act, the School District and Mr. Carpenter conspired and agreed to cover up and conceal the wrongdoing that led to Plaintiffs' injuries; and (9) that the School District is jointly and severally liable for all injuries and damages caused by the actions of its officials and its employees pursuant to the doctrine of vicarious liability under the New Mexico Tort Claims Act. Plaintiff's complaint, originally filed in the Eleventh Judicial District Court, County of San Juan, State of New Mexico, was timely removed to this Court on February 7, 2018. (Doc. 1.)

         III. ANALYSIS

         A. PLAINTIFFS R.G.'s and L.G.'s INDIVIDUAL CLAIMS ARE DISMISSED

         To the extent that Plaintiffs' Complaint which contains references to “each Plaintiff” is intended to present individual claims by I.G.'s parents for harms they suffered, (separate and apart from their being named as parents and next friends of I.G.), their claims are dismissed without prejudice for failure to state a claim on which relief may be granted. “[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it, how the defendant's actions harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Plaintiff R.G. and L.G. have utterly failed to satisfy basic notice pleading requirements, and their individual claims (if any)[3] are dismissed without prejudice. The Court will afford Plaintiffs an opportunity to seek leave to amend the Complaint by a motion attaching the proposed amended complaint, within thirty days of the date of this Memorandum Opinion and Order's entry to state claims, if any, on behalf of R.G. and L.G. individually on which relief may be granted. The proposed amended complaint must 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.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original). Failure to timely move to amend the complaint may result in dismissal without prejudice of the action by R.G. and L.G. without further notice. See Fed. R. Civ. P. 41(b) (providing for involuntary dismissal “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order”).

         B. PLAINTIFFS' FOURTEENTH AMENDMENT DUE PROCESS CLAIMS

         Plaintiffs first, second, and fourth claims are brought against School Defendants pursuant to 42 U.S.C. Section 1983, and are premised on violations of the Fourteenth Amendment. To state a valid cause of action under section 1983, a complaint must allege that the defendant acted under color of state law to deprive the plaintiff of a right secured by the constitution and laws of the United States. Hill v. Ibarra, 954 F.2d 1516, 1520 (10th Cir. 1992). Plaintiffs' Complaint appears to the Court to assert violations of I.G.'s Fourteenth Amendment rights to bodily integrity, freedom from reputational harm, and right to privacy. Thus, the Court must determine whether these are rights secured by the Constitution because if there is no constitutional right, it does not matter what facts have been provided as there can be no § 1983 claim.

         “The Fourteenth Amendment prohibits any state deprivation of life, liberty, or property without due process of law.” Ingraham v. Wright, 430 U.S. 651, 672 (1977). Due process protections supply both substantive and procedural constraints. Substantive due process protects individuals from deliberate and constitutionally arbitrary governmental interference with fundamental rights irrespective of the applicable procedural protections. Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992); Skinner v. Oklahoma, 316 U.S. 535, 536-537, 541 (1942); Griswold v. Connecticut, 381 U.S. 479, 486-88 (1965) (Goldberg concurring). “Only the most egregious official conduct” that “shocks the conscience, ” will subject the government to liability for a substantive due process violation. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). “[T]he measure of what is conscience-shocking is no calibrated yard stick” and whether a specific act of a government officer “shocks the conscience” depends on her state of mind and the context in which the action is taken. Id. at 847, 854; Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008) (“[D]eliberate government action that is arbitrary and unrestrained by the established principles of private right and distributive justice” is shocking to the judicial conscience.”) “Deliberate indifference” can support substantive due process liability in situations where the government owes a special duty of care to those in its charge. Id. at 849-50. Substantive Due Process “is not a guarantee against incorrect or ill-advised . . . decisions”, Bishop v. Wood, 429 U.S. 341-350 (1976), and “extreme verbal abuse typically is insufficient to establish a constitutional deprivation” of substantive due process. Abeyta v. Chama Valley Independent School District, No. 19, 77 F.3d 1253, 1256 (10th Cir. 1996) (holding that teacher's conduct in calling twelve-year-old female student a prostitute in front of the class over a month-and-a-half period was not so severe as to shock the conscience and be actionable under section 1983 as substantive due process violation.)[4] Ordinary torts and mere negligence without more do not give rise to substantive due process violations. See Paul v. Davis, 424 U.S. 693, 701 (1976) (stating Fourteenth Amendment is not “a font of tort law to be superimposed upon whatever systems may already be administered by the States”); Daniels v. Williams, 474 U.S. 327, 328 (1986); County of Sacramento v. Lewis, 523 U.S. at 849; Abeyta, 77 F.3d at 1257.

         Procedural due process by contrast concerns procedural constraints on the manner in which the Government may deprive persons of rights or entitlements. The Tenth Circuit employs a two-step test when evaluating whether a citizen's right to procedural due process has been violated: “(1) Did the individual possess a protected interest to which due process protection was applicable? (2) Was the individual afforded an appropriate level of process?” Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir. 1999) (quoting Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998)). Whether the process afforded is deemed sufficient will vary with the facts of a particular case, and courts apply a balancing test that “consider[s] the private interest involved, the risk of erroneous deprivation resulting from the procedures used, the probable value of additional procedural safeguards, and the government's interest in efficient procedures.” Clark, 168 F.3d at 1189; Mathews v. Eldridge, 424 U.S. 319 (1976).

         1. First Cause of Action Against School Defendants [5]

In his First Cause of Action, brought against all Defendants, Plaintiff I.G. seeks to hold Defendants liable for the sexual abuse perpetrated against him by Defendant Kirkland and for the invasion of his privacy and resulting public humiliation and reputational harm he suffered as a result of Defendant Garcia's actions. (Doc. 1-8 at p. 5-6, 8-9.) The Court first considers the sexual abuse-centered claims as against the School Defendants before turning to the privacy and reputation-centered claims against them.

         i. State-Created Danger Theory Related to the Sexual Abuse

         Seeking to hold School Defendants liable for the sexual abuse I.G. suffered, Plaintiffs allege these Defendants had a duty to refrain from engaging in reckless or deliberate conduct that could cause harm to Plaintiffs, that they had a constitutional duty to refrain from conduct that subjected I.G. to sexual abuse by Defendant Kirkland, and that they had a duty to “avoid taking action [that] increased the danger of or vulnerability to such acts beyond the level it would have been absent their conduct.” (Doc. 1-2 at ¶¶ 24-25.) They claim that because School Defendants breached these duties, I.G.'s Fourteenth Amendment rights to bodily integrity and to be free from sexual assault were violated. Although the Complaint does not specifically identify a theory of recovery beyond the allegations of duty, breach, and the substantive due process protections of the Fourteenth Amendment, it is reasonably apparent that the claims against School Defendants in the First Cause of Action arising out of the sexual abuse by Defendant Kirkland are brought pursuant to a theory of state-created danger.[6] (Id. at ¶¶ 24-30.)

         Because the Due Process Clause does not impose an affirmative obligation on the State to ensure that an individual's life, liberty and property interests do not come to harm through third-party means, a State's failure to protect an individual against private violence does not constitute a violation of due process. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195, 197 (1989). State actors may generally “only be held liable . . . for their own acts, not for the acts of third parties.” Robbins v. Okla., 519 F.3d 1242, 1251 (10th Cir. 2008). There are two recognized exceptions to the foregoing general principles-the “special relationship” exception and the “danger creation” exception. The “special relationship” exception applies in circumstances in which the state has placed some restraint on the plaintiff's personal liberty as, for example, in a circumstance in which the state incarcerates or institutionalizes someone. DeShaney, 489 U.S. at 199-200 (“[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself” an affirmative duty to protect arises from the limitation that the state has imposed on his freedom to act on his own behalf.); Armijo ex rel Chavez v. Wagon Mound Pub. Schs., 159 F.3d 1253, 1261 (10th Cir. 1998). The special relationship exception does not apply to the relationship between public schools and school children, and it is not relevant here. See Armijo, 159 F.3d at 1261 (“Compulsory attendance laws for public schools . . . do not create an affirmative constitutional duty to protect students from the private actions of third parties while they attend school”; thus, absent evidence that a school restrained a student's liberty in a “custodial” manner, there is no “special relationship” as that phrase is used in the Fourteenth Amendment context between the student and the school).

         The “danger creation” exception provides that a state may be held liable for harm that befalls an individual if the state “created the danger” that led to the harm. Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995); Robbins, 519 F.3d at 1251 (“[A]bsent some affirmative act that incurred a duty to protect, ” state actors cannot be held liable for failure to protect the plaintiff from harm). Because the state-created danger doctrine necessarily involves affirmative conduct on the part of the state in placing the plaintiff in danger, inaction in the face of some foreseeable harm is not sufficient to trigger this exception. Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 916-17 (10th Cir. 2012). To prevail on a danger creation theory, the plaintiff must prove that:

(1) the state entity and individual actors created the danger or increased the plaintiff's vulnerability to the danger; (2) plaintiff was a member of a limited and specifically definable group; (3) defendant's conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (4) the risk was obvious and known; (5) defendants acted recklessly in conscious disregard of that risk; and (6) such conduct, when viewed in total, shocks the conscience.

Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir. 2008).

         The allegations in the Complaint track the foregoing elements. Specifically, Plaintiffs allege that: Defendants actions created an immediate threat of harm to Plaintiffs, [7] and, in regard to I.G., Defendants violated a constitutional duty to “avoid taking action [that] increased the danger of or vulnerability to “sexual acts” (Doc. 1-2 at ¶¶ 25-26); Plaintiffs “were members of a particular, limited, closed group” (Doc. 1-2 at ¶ 26); “Defendants were deliberately indifferent to the known or obvious risks and consequences of their actions” (Doc. 1-2 ¶ 30); Defendants' conduct “was intentional, unreasonable, reckless, wanton, willful, and deliberately indifferent to the [Plaintiffs'] rights” (Doc. 1-2 at ¶ 32); and “Defendants placed Plaintiffs in a foreseeably dangerous position[] and[, ] in the context of the situation, [their actions] were shocking to the conscience” (Doc. 1-2 ¶ 31). Additionally, Plaintiffs allege that, as a matter of clearly established law, “citizens have the right under the Fourteenth Amendment to be free from state action which affirmatively creates or exacerbate a danger to them[.]” (Doc. 1-2 at ¶ 34.)

         The right to bodily integrity and the right of school children to be free from sexual assault and molestation by their school teachers are protected by the Fourteenth Amendment. See generally Albright v. Oliver, 510 U.S. 266, 272 (1994) (recognizing that the right to bodily integrity is protected by the substantive due process clause of the Fourteenth Amendment); Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253, 1255 (10th Cir. 1996) (“Sexual assault or molestation by a school teacher violates a student's substantive due process rights.”). However, setting aside the Complaint's conclusory, vague, and non-specific allegations discussed in the preceding paragraph, the sole allegation supporting the theory that School Defendants are liable under a theory that they affirmatively placed I.G. in danger of being molested by Defendant Kirkland at his home, is that the School District and Mr. Carpenter knew or should have known about Defendant Kirkland's propensity for illegal and immoral conduct with students. (Doc. 1-2 at ¶ 14.) See Ashcroft, 556 U.S. at 678 (“A pleading that offers labels and conclusions[, ] . . . a formulaic recitation of the elements of a cause of action” or “naked assertions devoid of further factual enhancement” does not plausibly state a claim upon which relief can be granted.).

         Even when viewed in the light most favorable to Plaintiffs, the allegations in Plaintiffs' Complaint do not demonstrate affirmative conduct by School Defendants to create or increase I.G.'s vulnerability to sexual abuse by Defendant Kirkland at Defendant Kirkland's home. Nor do the factual allegations demonstrate that any of the School Defendants placed I.G. in a situation where he was at a substantial risk of serious immediate and proximate harm from Defendant Kirkland, or that the risk that Defendant Kirkland would sexually abuse I.G. was “obvious and known” to any of them. Rost, 511 F.3d at 1126. Even assuming Defendant Kirkland's inappropriate social media postings and his history of permitting students to use his credit card to shop for personal items gave rise to some foreseeable risk that Defendant Kirkland's inappropriate behavior could cause some harm to students, mere inaction in the face of foreseeable harm is insufficient to trigger the state-created danger exception. Gray, 672 F.3d at 916-17 (negligent conduct does not give rise to a Section 1983 claim); see also Rost, 511 F.3d at 1126 (holding school district could not be held liable for student-on-student sexual harassment based on a danger-creation theory for failing to enforce its sexual harassment policy and failing to remove the victim from a class that was also attended by her harassers); Robbins, 519 F.3d at 1251 (holding state actors could not be liable for infant's death at state-subsidized daycare center where defendants had no direct contact with infant, and plaintiffs generally alleged that defendants “were or should have been aware of [the day care owner's] personal background”; had instructed infant's parents to place her in specific daycare; and continued to place children in the daycare instead of revoking daycare owner's operating license).

         Plaintiff's First Cause of Action insofar as it seeks to hold each of the School Defendants liable for the sexual abuse perpetrated by Defendant Kirkland against I.G. fails to state a claim upon which relief can be granted and this aspect of the Complaint shall be dismissed. Because the Court finds that Plaintiffs' do not state an actionable section 1983 claim against School Defendants arising out of the sexual abuse by Defendant Kirkland, the Court will not address qualified immunity asserted by the individual Defendants.

         ii. Plaintiff's Privacy Violation Claim

         Plaintiffs also apparently seek to hold Defendant Garcia liable under section 1983 for violating their substantive due process right to informational privacy. (Doc. 19 at 1, 8.) Specifically, Plaintiffs claim that Ms. Garcia violated I.G.'s right to privacy by sending a text message to the Aztec Junior High School class president the day before Mr. Kirkland was scheduled for a first appearance in criminal court to answer for two counts of Criminal Sexual Penetration of a minor related to his alleged sexual abuse of I.G. (Doc. 1-2 at ¶ 16, Doc. 19.) Ms. Garcia's text message was widely disseminated by the class president over Instagram to that student's over eleven hundred followers. (Doc. 1-2 at ¶ 16.) And it ultimately led to the disruptive presence of two dozen students, carrying signs in support of Mr. Kirkland, at the court hearing. (Id.) The two dozen students were so disruptive that the presiding judge was forced to close the hearing, which would otherwise have been open to the public. (Id.) As a consequence of these events, the local newspaper published an article revealing that I.G. and his parents were, respectively, the alleged victim and the parents of the alleged victim of sexual abuse by Defendant Kirkland. (Doc. 1-2 at ¶ 20.)

         Construing the foregoing allegations in the light most favorable to Plaintiffs, it appears that Plaintiffs seek to recover damages for Ms. Garcia's[8] violation of I.G.'s constitutional right to control the extent to which his status as a victim of sexual abuse and the status of the criminal proceedings arising from that abuse were disseminated to his high school peers and to his community at large. Relatedly, the Court infers that Plaintiffs' claim in this regard stems, as well, from the implication expressed in Ms. Garcia's text message encouraging student support for Defendant Kirkland, that I.G.'s allegations of sexual abuse were unworthy of credence. Because Defendants have asserted that Ms. Garcia is qualifiedly immune from Plaintiff's constitutional claims, the Court considers whether Plaintiff's Fourteenth Amendment privacy claim may survive this assertion of qualified immunity.

         Qualified immunity attaches when an official's conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. ___, 136 S.Ct. 305, 308 (2015); Wilson v. Layne, 526 U.S. 603, 609 (1999). When a defendant asserts a qualified immunity defense in a motion to dismiss, the Court determines (1) whether a complaint's allegations are sufficient to show that the defendant violated a constitutional or statutory right and (2) whether the constitutional or statutory right was clearly established when the alleged violation occurred. See Peterson v. Jensen, 371 F.3d 1199, 1202 (10th Cir. 2004). The Court has discretion to decide the order in which to engage in the two-prong qualified immunity analysis. Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866 (2014) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009). The first inquiry is, for all practical purposes, indistinguishable from the inquiry made in assessing a garden-variety Rule 12(b)(6) challenge to the sufficiency of the pleadings. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The “clearly established” inquiry for qualified immunity examines whether at the time of the challenged conduct, the contours of the constitutional right were so well-settled, in the particular circumstances presented, that “every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 132 S.Ct. 2088, 2093 (U.S. 2012). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “‘[C]learly established law' should not be defined at a high level of generality, ” but must instead be “‘particularized' to the facts of the case.' Otherwise, [p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” White v. Pauly, 137 S.Ct. 548, 552 (2017). In other words, qualified immunity protects ‘“all but the plainly incompetent or those who knowingly violate the law.”' Ashcroft v. al-Kidd, 563 U.S. at 741.

         The Supreme Court has long recognized the existence of a fundamental right to privacy which is protected by the due process clause of the Fourteenth Amendment. Whalen v. Roe, 429 U.S. 589, 598 n.23 (1977). The right to privacy protects “the individual interest in avoiding disclosure of personal matters” including, particularly, the disclosure of information that, if it becomes publicly known, might adversely affect an individual's reputation. Id. at 599-600. The Tenth Circuit “has repeatedly interpreted the Supreme Court's decision in Whalen . . . as creating a right to privacy in the non-disclosure of personal information.” Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000). The right of personal privacy protects one's individual interest in making important decisions relating to marriage, procreation, child rearing and education, contraception, and family relationships. Carey v. Population Servs., Intern., 431 U.S. 678, 684 (1977). And it clearly protects the right to privacy in confidential medical information. Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000). Further, “information regarding one's body and health is a matter [that] the individual is ordinarily entitled to keep private”; and the constitutionally protected right to privacy “is implicated when an individual is forced to disclose information regarding personal sexual matters[.]” Eastwood v. Dep't of Corr. of State of Okla., 846 F.2d 627, 631 (10th Cir. 1988). This right to “informational privacy” extends to minors and to adults alike. Aid for Women v. Foulston, 441 F.3d 1101, 1117 (10th Cir. 2006)

         Importantly, however, an individual's right to privacy is limited to information in which the individual has a legitimate expectation of confidentiality. Aid for Women, 441 F.3d at 1116. This principle is reflected in the three-part inquiry, adopted by the Tenth Circuit for “determining whether information is of such a personal nature that it demands constitutional protection” which requires the Court to “consider (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner.” Nilson v. Layton City, 45 F.3d 369, 371 (10th Cir. 1995). Of particular interest in this matter is the issue of whether I.G. or his parents had a legitimate expectation of privacy in the confidentiality of the information contained in Ms. Garcia's text message.

         Information that is readily available to the public-such as judicial proceedings and information contained in police reports-is not protected by the constitutional right to privacy. Id.; see generally, Cox Broad. Corp. v. Cohn, 420 U.S. 469, 493-95 (1975) (relying on the proposition of tort law that “[t]here is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public” in the context of a Fourteenth Amendment-based claim of infringement on the right of privacy brought by a father who sought to hold a television station liable for disseminating the name of his daughter-a deceased victim of rape). Thus, the disclosure of such information by a state actor cannot give rise to a claim for the violation of the constitutional right to privacy. Id. “The legitimacy of individual expectations of confidentiality must arise from the personal quality of any materials which the state possesses.” Flanagan v. Munger, 890 F.2d 1557, 1571 (10th Cir. 1989). State statutes and the confidentiality policies of local governmental agencies do not, by themselves, create a constitutional privacy right such that they will support an individual's claim that he or she had a legitimate expectation of privacy protected by those policies. Id. Accordingly, “[a]llegations of a failure on the part of government officials to abide by their own assurances of confidentiality will not suffice to state a claim. Any disclosed information must itself warrant protection under constitutional standards.” Id. (holding that the disclosure of reprimands ...


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