Opinion
No. 05-35206. D.C. No. CV-03-00013-DWM.
Argued and Submitted October 26, 2006 Submission Deferred November 9, 2006 Resubmitted March 22, 2007 Seattle, Washington.
March 27, 2007.
Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding.
ORDER AND MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
1. The boys who did the videotaping did not do so based on power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49 (1988) (internal quotations omitted). Only two of the three boys were ever employed by the school, and their videotaping started long before they worked at several weekend tournaments. Because the boys did not commit these misdeeds "within [their] scope of employment or under color of state law, then [they] act[ed] as . . . private citizen[s]." Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).
2. "[A] State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause."DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989). This case doesn't qualify for one of the narrow exceptions to this rule. The policies at issue did not amount to deliberate indifference to plaintiffs' constitutional rights, nor were they the moving force behind the violation. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). Nor did defendants "act with deliberate indifference to [a] known or obvious danger," L. W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996), and the boys' "intervening `private acts' were `unforeseeable.'" Huffman v. County of Los Angeles, 147 F.3d 1054, 1059 (9th Cir. 1998) (quoting Van Ort, 92 F.3d at 837).
3. "There is no respondeat superior liability under section 1983."Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Because defendants did not participate in or direct the boys' videotaping, plaintiffs must establish that defendants, as supervisors, acted with deliberate indifference in failing to prevent it. Even assuming that a supervisory relationship existed, plaintiffs cannot establish deliberate indifference on this record — i.e., "(1) an unusually serious risk of harm, . . . (2) defendant's actual knowledge of (or, at least, willful blindness to) that elevated risk, and (3) defendant's failure to take obvious steps to address that known, serious risk." Grubbs, 92 F.3d at 900 (internal quotations omitted).
There is no evidence that McDermid and Fuhrman knew anything at all about the videotaping. Viewing the facts in the light most favorable to plaintiffs, Superintendent Brott was informed of rumors of videotaping on campus. These reports didn't specify that the videotaping was occurring in the girls' locker room, nor were they confirmed by any other source. Failing to investigate a vague and unsubstantiated report, even negligently, does not constitute actual knowledge or willful blindness. Nor is Pembleton's confused and uncorroborated depositional testimony enough to establish Principal Duncan's deliberate indifference. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.").
4. The remaining issues are rendered moot by our ruling.
AFFIRMED.
Like the majority, I have no difficulty in holding that the unsupervised "towel boys" who set up the camera installations that enabled them to videotape the girl athletes showering and changing in the locker rooms were not "state actors" so as to implicate Section 1983 liability on that account. But this is after all an appeal from a grant of summary judgment in favor of defendants who are state actors, and it will not do to discount the evidence proffered by plaintiffs on that score on grounds of credibility or anything else. Because a reversal as to any of those defendants would suffice to call for a remand, I will focus on the actionable irresponsibility of Superintendent Joseph Brott ("Brott").
Here another student told girls gym teacher Arlita Fenner ("Fenner") in September 2001 that he had discovered a two-way mirror in the girls' locker room. Within a short time thereafter the videotapes that the boys had taken were circulated throughout the high school (including a showing to the student son of Superintendent Brott). With the videos having become the subject of open discussion in the high school's hallways and classrooms, it is unsurprising that Fenner heard a discussion outside of her office among girls who believed that they were being filmed.
Although young Brott claims that the images in the tape he viewed were black and white and blurry, the student who showed the tape to young Brott testified that the images were clear. As the text of this partial dissent will reflect, "like father, like son" appears to extend to what, if this were instead a criminal case involving both Brotts, would justify a so-called "ostrich instruction" defining their "knowledge."
When Fenner then talked the matter over with another teacher, Jan Dougherty, the latter convinced Fenner to tell Superintendent Brott about it. Fenner promptly told Brott "the girls think they are being videotaped." Brott responded, "I'll take care of it." But having said that, he did nothing at all.
Such shocking indifference, without even any minimal further inquiry or investigation into a report of what if true would constitute an equally shocking violation of the girls' constitutional rights to privacy, must be characterized as actionable deliberate indifference, triggering a Section 1983 claim that can be resolved only at trial. To label that indifference on Superintendent Brott's part as mere negligence rather than wilful blindness does not meet the standard marked out by this Court's decision in Flores v. Morgan Hill Unified School District, 324 F.3d 1130 (9th Cir. 2003) (affirming the denial of summary judgment as to defendant school administrators in the face of a claim of qualified immunity) — or even by this Court's earlier opinion in L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996), relied on by the majority. It must be remembered that for summary judgment purposes all reasonable inferences from the evidence must be drawn in plaintiffs' favor, not in favor of the movant defendants. In that light it was impermissibly myopic of the district court to say that Fenner's report "did not apprize Brott of a known or obvious risk to constitutional rights," and I submit that our panel should view the case through a clearer lens.
Accordingly, I respectfully dissent as to the affirmance of summary judgment in favor of Superintendent Brott. And because the need for trial in that respect will require a more elaborate inquiry into the facts, I would with equal respect suggest a remand that would leave open such issues as potential class certification and some of the discovery routes that were closed off by the district court's rulings.