Case 3:00-cv-00050-RAM-RAM Document 1-2638659 Filed 01/28/00 Page 1 of 28

JON W. DAVIDSON LAMBDA LEGAL DEFENSE • AND EDUCATION FUND, INC. 6030 Wilshire Boulevard, Suite 200 Loa Angeles, California 90036 (323) 937-272&, ext. 228 (323) 937-0601 (fax) (Application to appear pro hac vice pending)
DONI GEWIRTZMAN LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC. 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585, ext. 242 (212) 809-0055 (fax) (Application to appear pro hac vice pending)
Attorneys for Plaintiff Derek R Henkle

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CV-N-00-0050-HDM-RAM

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DEREK R. HENKLE,

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Plaintiff,

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VS

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ROSS GREGORY, in his official and

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individual capacity, and DENISE

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HAUSAUER, LORETTA RENDE, JOE

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ANASTASIO, ROBERT FLOYD, SERENA )

ROBB, ARNEL RAMILO, and GLEN SELBY, )

in their individual capacities,

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Defendants.

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Docket No. COMPLAJNT DEMANDFORJURY

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JURISDICTION AND VENUE 1. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. Sections 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. This Court has supplcmentaljurisdktion to hear the state claims of PlaintiffDerek R. Henkle ("Plaintiff') under 28 U.S.C. Section 1367(a). 2. Jurisdiction also is conferred upon this Court pursuant to 28 U.S.C. Section 1332 because, as alleged below, there is complete diva:sity of citizroship bclwecn the Plaintiff and all Defendants and the matter in controversy, exclusive of interest and costs, exceeds the sum of seventy-five thousand dotlars. 3. Plaintiff has complied with the requirements of Nevada law waiving sovereign immunity, set forth in Nev. Rev. StaJ. Ann. Sections 41.031 et seq. 4. Ve!Ille IS proper in this Court under 28 U.S.C. SectiQn 1391(b) because a substantial part of the events that gave rise to Plaintiff's claims took place within the Northern Division of the District of Nevada.
PRE~ARYSTATEMENT
5. This is a civil rights action against employees and officials of the Washoe County School District for depriving Plaintiff Derek R. Henkle of established constitutional, statutory and common law rights.
6. Plaintiff attended Galena High School, Washoe High School, and Wooster High School, all of which ace public high schools 1n the Washoe County School District. While
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attending these schools, Plaintiffs classmates routinely subjected him to severe and pervasive verbal and physical harassment on school ground3. Tirls harassment occurred on a near-daily b~U~is beginning in the Fall of 1995 and continued until he was forced to leave the public school system in February of 1997. Plaintiffcontinually Wall harangued by his classmates, who referred to him using anti-gay terms such as "faggot," "queer," "fairy," "butt-pirate," ''sissy," "ass Iicker," "AIDS whore," and "fucking faggot" and threatened to assault, injure, or kill Plaintiff. On more than one occasion, Plaintiff was physically assaulted by fellow students while on school property. Defendants were aware of the verbal and physical harassment and abuse, and had the authority to institute corrective and preventative measures, but Defendants repeatedly and intentionally :tailed to take the necessary measures to stop it. Rather than appropriately addressing the harmful behavior of other students, Defendants shifted Plaintiff from school to ~'Chool throughout the District Defendants failed to act, and took affirmative actioru; detrimental to Plaintiff, because of Plaintiffs sexual orientation, sex, and expression about his sexual orientation. Defendants deprived Plaintiffof the benefits of a high school education, and caused his transfer at the age of 16 out ofthe Washoe County S~;hoo\ District to an adult education program that could not provide Plamtiff v.ith a high school diploma.
7. Specifically, this action challenges Defendants' denial ofPlaintiff's rights secured under the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. Section 1983, and Defendants' tortious negligence, negligent supervision and training. intentional infliction ofemotional distress, and negligent infliction of emotional distress under Nevada state law.
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PARTIES 8. From August 1994 until February 1997, PlaintiffDEREK HENKLE was a student attending public schools in the Washoe County School District, County of Washoe, State of Nt'Yada. Plaintiffcurrently is a citizen of the State of Georgia. Plaintiff is gay. 9. Defendants ROSS GREGORY, Principal, Galena High School; DENISE HAUSAUER, Assistant Vice Principal, Galena High School; LOUISE RENDE, Teacher, Galena High School; JOE ANASTASIO, Washoe County School District Director of Student Services; BOB FLOYD, Principal, Washoe High School; SERENA ROBB, Principal, Wooster High School, ARNEL RAMILO, Officer, Washoe County School Police; and GLEN SELBY, Officer, Washoe County School Police, are or were at all relevant times individ11Jlls working as employees and agents of the Washoe County School Di5trict, a public school district organized and operated under the laws of the State of Nevada. All Defendants currently are citizens of Nevada. 10. Plaintiff alleges that each of the Defc:ndants performed, participated in, aided andlor abetted in some manner the acts averred herein, proximately caused the damages averred below, and is liable to Plaintiff for the damages and other relief sought herein. 11. Based upon information and belief, Plaintiffalleges that Defendant Gregory was responsible for the trauung and supervision of Defendants Hausauer and Rende. 12. Based Upon information and belief, Plaintiff alleges that Defendant Hausauer wa> responsible for the traming and supervision of Defendant Rende. 13. Based upon information and belief, Plaintiff alleges that Defendant Robb was
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responsible for the training and supervision of Defendants Ramilo and Selby.
STATEMENT OF FACTS 14. Galena High School ("Galena"), Washoe High School ("WIISboe''), and Wooster
High School ("Wooster") are public high schools in the Washoe County School District (the ''District").
Galena High School 15. Plaintiff Derek R. Henkle attended Galena from August 1994 until January 1996.
During that time, Ross Gregory ("Gregory") was the Principal at Galena, Denise Hausaner ("Hausa~1er'') was the Assistant Vice Principal at Galena. and Louise Rende ("Rende") was a teacher at Galena.
16. Prior to attending Galena, Plaintiff was enrolled at Washoe Cowtty School District's Pine Middle School, in a gifted and talented program. Due to Plaintiff's intellectual abilities, Plaintiff skipped eighth grade and was enrolled at Galena in a special program for gifted
and talented students. 17. In the early Fall of 1995, Plaintiffappeared on a local public access television
program entitled "Set Free." On the show, he participated in a discmsion on the subject of gay students and their experiences in high school.
18. Fmm that point on until he was forced to leave Galena, Plaintiff experienced a constant barrage of anti-gay harassment, assaults, intimidation, and discrimination from Galena
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students. 19. The lulrassment, asslllllts, intimidation, and discrimination occurred during school
hours and on school grounds. 20. Plaintiff made repeated reports direc;;tly to Defendants Hausauer and Rende about
the incidents ofharassment, assault, intimidation and discrimination. 2l. Defendants Gregory, Hausauer and Rende were aware ofthe harassment, assaults,
intimidation, and discrimination suffered by Plaintiff. 22. Defendants Gregory, Hausauer, and Rende had the authority to take corrective and
preventative action to stop the harassment, assaults, intimidation, and discrimination suffered by Plaintiff.
23. Defendants Gregory, Hausauer, and Rende delibecately, pwposefully and intentionally failed to take stq>s to end the harassment, assaults, intimidation, and discrimination suffered by Plaintiff.
24. Defendants Gregory, Hausauer and Rende failed to take the steps necessary to prevent future incidents ofbann to Plaintiff that were foreseeable given the past incidents of harassment, assault, intimidation and discrimination.
25. Based upon information and belief, this failure to take action departed from school and district procedures for dealing with harassment, viOlence, abuse and/or discrimination.
26. The incidents at Galena included: a. In the fall semester of 1995, Plaintiff was approached by several male Galena
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students on &;hool property who ~ailed him "fag," ''butt pirate," "fairy" and "homo." One of the students suggested that the group tie Plaintiff to the back of a truck and drag him down a nearby road. While on school property, the students pursued Plaintiff and succeeded in lassoing him around the neck with a rope three separate times. Plaintiff finally was able to escape to a classroom and immediately used an internal pnone to contact Defendant Hausauer's office. Plaintiff waited almost two hours for anyone to come to the classroom where he hid in fear. When Defendant Hausauer finally arrived, she responded to Plaintiff's recounting of the incident with laughter. Defendant Gregory also was aware of the incident. Instead of conducting an immediate investigation and punishing the harassers, Defendants Gregory and Hausl'Uer took no action against the students who assaulted Plaintiff for several months, despite knowing the identities of some of the students who were involved. Actions belatedly taken by Defendants Gregory and Hausauer occum:d only after Plaintiffhad been driven from Galena. b. During the fall semester of the 1995-1996 school year, Plaintiff was ertrolled in a mandatory English class taught and supervised by Louise Rende. Throughout the semester, Plaintiff repeatedly was harassed, intimidated, and subjected to discrimination by other students based upon Plaintiffs sexual orientation, sex, and expression. Students in the class repeatedly wmte the word "fag" on tlte "white board" and sent notes to Plaintiffcalling him a "fag." Students also drew
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pictures of men engaged in explicit sex acts on the "white board" and would call Plaintiff's attention to the pictures in front of other students. Defendant Rende was fully aware of the harassment, intimidation and discrimination as well as the identity of the harassers, but deliberately and purposefully took no steps to end the harassment or to discipline the hara.sscrs. Instead, Plaintiffwas admonished by Defendmrt Rende that his sexuality was a private matter and he should not discuss it with other students. Defendant Hausauer also was aware of the incidents in Defendant Rende's Euglish class and of Defendant Rende's acts and omissions, but made no effort to stop the harassment or to correct Defendant Rende's handling of the situation. Based on infonnation and belief, Defendant Gregory also was aware ofthe incidents in Defendant Rende's English class and was aware ofand endorsed Defendant Rende's acts and omissions, but made no effurt to stop the harassment or to correct Defendant Rende's handling of the situation. a. On or around December 1995, Plaintiff was in the Galena discipline office reporting another incident ofhanssment when several students ran by the office, shouted anti-gay epithets at him, and threw a metal object at him that missed Plaintiff and stuck in the wall. A school administrator witnessed the incident and
filed a report. Defendant Hausauer was aware of the incident and deliberately and
intentionally made no effort to investigate or discipline Plaintiff'5 atlil<:kers. Tills incident resulted in Plaintiff having an emotional breakdown in Defendant Hausauer's office. Based upon information and belie~ Defendant Gregory also
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was aware of the mcident and deliberately and intentionally made no effort to investigate or discipline Plaintiff's attackers. 27 _ During the fall semester of 1995, Plaintiffexpressed himself about his gay sexual orient:l.tion. For example, he wore buttons on his backpack that stated "We Are Everywhere" and "Out." Plaintiffalso spoke about his pro-gay viewpoints on various topics while at school. 28. Plaintiff's expression was fully protected by the First Amendment. 29. Defendants Gregory, Hausauer, and Rende were aware ofthe content and viewpoint of Plaintiff's expressive activity. 30. On more than one occasion, Defendants Hausauer and Rende told Plaintiff not to discuss his sexual orientation with other students. 31. Based upon information and belief, Defendant Gregocy was aware of and endorsed Defendant Hausauer's acts and omissions in response to Plaintiff's repeated complaints ofharassment, assault, intimidation, and discrimination, and to Plaintiff's expression. 32. Because of Defendants Gregory, Hausauer and Rende's failure to provide Plaintiff with an educational environment free from harassment and assaults and Plaintiff's resulting fear of further harassment and assaults, Plaintiff was unable to attend Galena any longer and Plaintiff asked to leave Galena at the end of the fall1995 semester.
Washoe High School 33. Washoe High School is an alternative high school. 34 Washoe was not a suitable placement for Plaintiff. 9

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35. Defendant Anastasio made the decision to transfer Plaintiff to Washoe High. 36. A$ a condition for a transfer out of Galena, Plaintiff was told by Defendant Anastasio that Plaintiff mu.st treat his sexuality as a private matter and that he must not discuss it with anyone at his next school. 37. As a result of Defendants' purposeful efforts to silence Plaintiffs protected speech, Plaintiff was chilled and deterred from engaging in protected speech at Washoe on the subject of his sexual orientation, and, among other things, removed the buttons stating "We Are Everywhere" and "Out" from his backpack when he began attending Washoe. 38. Plaintiff attended Washoe High School from January 1996 through May ofl996. During that time, Defendant Bob Floyd was the principal at Washoe. 39. DUDng his attendance at Washoe High, Defendant Floyd repeatedly told Plaintiff not to discuss his sexual orientation with others. In addition, during a meeting in Defendant Floyd's office, Defendant Floyd told Plaintiff to stop acting like a "fag." 40. While Plaintiff diminished his expression about his sexual orientation and of his pro-gay viewpoints, he did not totally succumb to Defendants' crn.sorship efforts and still expressed his identity and viewpOints on certain occasions. 41. Plaintiff's expression was fully protected by the Fir!ll Amendment 42. Defendant Floyd was aware of the content and viewpoint of Plaintiff's expressive activity. 43. Frustrated by the lack of educattonal opportunity at Washoe, Plaintiff requested a transfer to a traditional high school that would provide him with an education suited to his
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intellectual abilities. 44. Plaintiff initially was told by Defendant Floyd that such a traosfer was not
possible because he was openly gay and that a traditional high school therefore would not be appropriate for him.
Wooster High School
45. Eventually, it was decided that Plaintiff would transfer to Wooster High School
for the Fall 1996 scbool yeat. 46. Plaintiff was told by Defendant Floyd not to disclose hi5 sexual orientation to
others while at Wooster. 47. As a result of Defendant Floyd's pUiposeful effort to silence Plaintiff's sp~h,
Plaintiff was chilled and deterred from engaging in protected expression related to his sexual orientation. He did not discuss his sexual orientation with or express pro-gay viewpoints to other
students at W oostc:r during his first months there. 48. Plaintiff attended Wooster High School from August 1996 to February 1997.
During that time, Defendant Serena Robb was principal of Wooster. 49. While at Wooster, Plaintiff experienced a constant barrage of anti-gay harassment,
assaults, intimidation, and discrimination from hi~ classmates, who learned of his sexual orientation from students who previously had attended Galena with Plaintiff.
50. The harassment, assaults, intimidation, and discrimination at Wooster occurred during school hours and on school grounds.
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51. Plaintiff made repeated reports to s~;hool administrators about the incidents of harassment, assaults, intimidation and discrimination.
52. Defendant Robb was aware ofthe harassment, assaults, intimidation, and discrimination suffered by Plaintiff.
53. Defendant Robb had the authority to take corrective and preventative action to stop the harassment, assaults, intimidation, and discrimination suffered by Plaintiff
54. Defendant Robb deliberately, purposefully, and intentionally failed to take steps necessary to end the harassment, assaults, intimidation, and discrimination suffered by Plaintiff.
55. Defendant Robb failed to take steps n~essaryto prevent future incidents of harm to Plaintiff that were foreseeable given the past incidents of harassment, assault, intimidation and discrimination.
56. Based upon information and belief, this failure to take action departed from district and school procedures for dealing with harassment, violence, abuse, andloT discrimination.
57. While at Wooster, Plaintiff was approached on school property by several students who began laughing at him and barraging biro with anti-gay epithets. One of the
students approached Plaintifr and began p~.mching him in the face, calling him "bitch." The other
students encouraged the student punching Plaintiffto continue his attack. As a result ofthe attack, Plaintiff began bleeding profusely from his lip, nose and head.
58. The attack on Plaintiffwas witnessed by Defendants Ramilo and Selby, who were pTesent at the scene but deliberately, purposefully :md intentionally took no action to assist
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Plaintiff or discipline Plaintiff's harassers, despite having the authority and ability to do so. 59. Subsequently, Dc:fc:ndant.<> Ramilo and Selby deliberately, purposefully and
intentionally disrouraged Plaintiff from filing a report and would not let him file a complaint
without his mother's permission. 60 Defendants Ram.ilo and Selby also deliberately, purposefully, and intentionally
disl'.ouraged Plaintiff from describing the incident as a hate crime and discouraged him from calling the Reno Police Department to report the incident. They further refused to arrest his attacker despite knowing the idootity ofthe attacker.
61. Based upon information and belief, Defendant Robb was aware of Defendants Ramilo and Selby's failure to take appropriate action in response to the 11ttack on Plaintiff
62. Plaintiffwas forced to seek medical attention and to miss days of school as a

result of the attack. 63. After his initial months of silence to other students, and in light of others' attacks
on blln, Plaintiff eJ~:pressed himself about his sexual orientation to other students. Plaintiff also expressed pro-gay viewpoints to other students.
64. Plaintiff's expression was fully protected by the First Amendment. 65. Defendant Robb was aware of the content and viewpoint of Plaintiff's expressive

activity. 66.

Defendant Robb failed to provide Plaintiff with a safe educational environment

free from constant harassment, discrimination and abuse. 67. Defendants Floyd and Anastasio agreed that Plaintiff should return to Washoe

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High School for the spring 1997 semester_ 68. Defendant Floyd later reversed himself and would not accept Plaintiff at Washoe
notwithstanding that there was space available at Washoe for Plaintiffat the time. 69- In February 1997, systematically deprived of the benefits of a high school
education., 16 year-old Derek Henkle was placed in an adult education program at Truckee Meadows Community College at the direction of Defendants Anastasio and Floyd.
70_ Because he WllS not enrolled in a public high school, Plaintiff was rendered ineligible for a high school diploma.
General Factual Allegations 71. Defendants' discriminatory conduct, their intentional, reckless, and negligent
failure to take action to remedy the harassment and abuse of Plaintiff, and their failure to provide Plaintiff with a safe education in a suitable environment caused Plaintiff to suffer severe and extreme emotional distress and psychological damage, including but 11()\ limited to, an inability to concentrate on his studies, depression, debilitating fear, despair, anger, bwniliation, and anxiety. Plaintiff also suffered bodily injwy, including, but not limited to, physical injury, disruption of sleep, insomnia, loss of appetite, and suicide attempts. As a result of Defendants' actions, Plaintiff sought psychological counseling, and has been diagnosed with post-traumatic stress disorder_ Furthermore, Plaintiff lost substantial amounts of school time as a result of Defendants' actions.
72. As a result of Defendants' actions, PlaintiffwllS deprived of a high school \4

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diploma. The lack of a high school diploma has had a serious adverse impact on Plaintiff's professional, economic, and academic future.
73. Absent Defendants actions alleged herein, Plaintiff would have received a high school diploma from Galena High School and the Washoe County School District.
74. Based upon information and belief, Defendant GTegory, in his official capacity as Principal of Galena High School, is responsible for ensuring that all Galena students who are entitled to receive a Washoe County School District diploma obtain one.
7~. At all relevant times, Defendants Anastasio, Gregory, Hau.sauer, Rende, Floyd, Robb, Ramilo and Selby were acting within the course and scope of their employment and under color of state and local law.
76. The specific incidents ofdiscrimination, harassment and failure to take action alleged herein are merely representative, not exhaUBtive. A complete Jist of the incidents suffered by Plaintiff during his high school years in the Washoe CoWlty School District would be too lengthy to detail in this complaint.
77. On numerous occasions, Plaintiff reported the incidents of harassment and abuse he suffered to individual Defendants.
78 Defendants failed to take steps to address or prevent the harm to Plaintiff, including, but not limited to, disciplining students who harassed Plaintiff; fully investigating Plaintiff's complaints ofharassment; educating faculty and students about District policies and procedures; and training faculty and students so as to prevent discrimination or harassment in the future
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79. The acts and omissions ofDefendants not only failed to remedy, but also fostered and promoted, the hara:;sment ofPiaintiffby other students.
80. Defendants' direct actions in providing inappropriate educational placements for Plaintiff and censoring Plaintiff further harmed him.
81. As a direct, legal, and proximate m;ult of Defendants• violatiom ofPlaintiffs legal rights, Plaintiff has been damaged in an amount well in excess of seventy-five thousand dollars.
Additional Allegations- Federal Constitutional Claims 82. Upon information and belief, Defendants have policies and procedures to prevent
and remedy harassment, discrimination, and/or violence suffered by all students, and take appropriate action to prevent and remedy such harms for non-gay students, yet did not do so fur Plaintiff.
83. Upon information and belief, Defendants have policies and procedures to prevent and remedy harassment, discrimination, and/or violence snffered by all students, and take appropriate action to prevent and remedy such harms for female students, yet did not do so for Plaintiff
84. The acts and omissions alleged above by Defendants were OO!lllllitted with deliberate indifference towards the well-being and rights of Plaintiff.
&5. All of the acts or omissions alleged above by Defendants were committed intentionally and purposefully because of Plaintiff's sexual orientation.
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86. The acts and omissions alleged above by Defendants were committed intentionally and pmposefully because of Plaintiffs sex.
87. The acts and omissions alleged above by Defendants were committed intentionally and purposefully because of the content and viewpoint of Plaintiffs expression about his sexual orientation.
Additional Allegations- State Tort Claims 8&. At all times relevant herein, Defendants were acting in a ministerial, operational,
and non-discretionary capacity and!or performing ministori.al, operational, and non-discretionary
functions or duties. 89. Defendants owed Plaintiff a duty of care to ensure the safety and well-being of
Plaintiff and all students. This overall duty of care encompassed a duty to supervise the conduct
of all students, to enforce rules and regulations necessary for the protection of students, and to take appropriate measures to protect students from the misconduct of other students. Defendlmts, in the course and scope of their duties as employees of District, had a duty to exercise due care to protect Plaintifl' from harassment and other miscondud by students and by other Defendants.
Encompassed within Defendants' duty to protect Plaintiff and other students was a duty to
exercise d11.e care in investigating Plaintiffs complaints of assault, harassment, and
discrimination by other students; to take reasonable precautions to protect Plaintiff from
hanBsment, assa~t\ts, abuse and discrimination that reasooably could be anticipated; to make police reports of the crimes; to take prompt and appropriate action to protect Plaintiff from
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Case 3:00-cv-00050-RAM-RAM Document 1-2638659 Filed 01/28/00 Page 18 of 28 further harassment and fear; and to remove dangeroUB studonh from the school, if necessary. Defendants owed every duty alleged in this paragraph to Plaintiff. 90. At all relevant times herein, Defendants Gregory, Hausauer, and Robb owed a ministerial, operational, and non-discretionary duty to Plaintiff to take reasonable care in training and supervising their emplO)'t'e~ and subordinates.
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FIR.ST CLAIM FOR REUEF U.S. Constit. Amend. XIV, Equal Protection on the Basis of Sexual Orientation
42 U.S C. Section 1983 (Against Defendant Gregory in his official capacity and Defendants Anastasio, Gregory,
Hausauer, Rende, Floyd, Robb, Rmilo and Selby in their individual capacities)
91. Plaintiff incorporates by reference and realieges panlgl"aphs 1 to 87 of this complaint.
92. The above-described conduct by Defendants violated the right of Plaintiffnot to be deprived of equal protection ofthe laws on the basis of sexual orientation under the Fourteenth Amendment to the United States Constitution.
93. Plaintiff requests that the Court issue an injunction ordering Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe County School Distric;t diploma., and that the Court award compensatory and punitiV~: damages in an amount to be determined according to proof by Plaintiff against Defendants Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities.
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SECOND CLAIM FOR REI IEF U-S. Constit. Amend. XIV, Equal Protection on the Basis of Sex
42 U.S.C Section 1983 (Against Defendant Gregory in his official capacity and Defendants Anastasio, (]Tegory,
B:ausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities)
94. Plaintiff incorporates by reference and roalleges paragraphs 1 to 87 ofthi$ complaint
95. The above-described conduct by Defendants violated the right of Plaintiffnot to be deprived of equal protection of the laws on the basis of sex under the Fourteenth Amendment to the United States Constitution.
96. Plaintiff requests that the Court issue an injunction ordering Defendant Gregory in his official capacity to eru;ure that Plaintiff is awarded a Washoe County School District diploma, and that the Court award compensatory and punitive damages in an amount to be determined according to proof by Plaintiff against Defendants Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities.
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'fH1RD CLAIM FORREJ1Ef U.S. Constit. Amend. I, Freedom of Speech
42 U.S.C. Section 1983 (Against Defendant Gregory in his official capacity and Defendants Anastasio, Gregory,
Hausauer, Rende, Floyd, Ramilo and Selby in their individual capacities)

97. complaint.

Plaintiffincorporates by reference and reaJleges paragraphs I to 87 of this

98. The above-described conduct by Defendants violated Plaintiff's right to freedom of speech under the First Amendment ofthe United States Constitution by censoring and chilling Plaintiffs speech and deterring him from exercising his F"rrst Amendment rights.
99. Plaintiffrequests that the Court issue an injunction ordering Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe County School District diploma, and that the Court award compensatory and punitive damages in an amount to be determined according to proof by Plaintiff against Defendants Ani!li!asio, Gregory, Hausauer, Rende, Floyd, Ramilo and Selby in their individual capacities.

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FOURTH CLA1M FOR REI .TEF U.S. Constit. Amend. I, Freedom of Speech
42 U.S.C. Section 1983 (Against Defendant Gregocy in his official capacity and Defendants Anastasio, Gregory,
Haunuer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities) 100. Plaintiffincorporates byreference and realleges paragraphs I to 87 ofthis complaint. 10 I. The abovt>-described conduct by Defendants violated the right ofPlaintiff to be free from retaliatory treatment based upon the exercise of his freedom of speech under the First Amendment to the United States Constitution. I02. Plaintiff requests that the Court issue an injunction ordering Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe County School District diploma, and that the Court award compensatory and pumtive damages in an amount to be determined according to proof by Plaintiffagainst Defendants Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities.
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FIFTH CLAIM FOR RELIEF State Common Law Claim for Negligence (Against Defendants Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Rarnilo and Selby in
their individual capacities)
103. Plaintiff incorporatt'.'l by reference and realleges paragraphs 1 to 81 and 88 to 90 of this complaint.
104. Defendants negligently failed to protect Plaintiff from harassment, abuse, assaults, and discrimination. Defendants' fi!jgligent failure to protect Plaintiff from harassment, abuse, assaults, and discrimination was done in bad faith.
105. As a result ofdefendants' negligence, plaintiff was deprived of the benefits of a high school education and diploma, and suffered physical and emotional injuries alleged herein.
106. Plaintiff requests that the Court award compensatory damages in an arnowtt to be determined according to proofby Plaintiff against Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Ramilo and Selby in their individual capacities.
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SIXTii CLAIM FOR RELIEF Common Law Claim for Negligent Training and Supervision
(Against Defendants Gregory, Hausauer, and Robb) 107. Plaintiff incorporates by reference and realleges paragraphs I to 81 and 88 to 90 of this complaint. l 08. Defendants Gregory, Hausauer, and Robb were negligent in failing to adequately train and supervise their employees and 5ubordinates. Defendants negligent failure to train and supervise was done in bad faith. 109. As a result of defendants' negligence, plaintiffwas deprived ofthe benefits ofa
high school education and diploma, and sufferW. physical and emotional injuries allegro herem.
110. Plaintiff requests that the <Aurt award compensatory damages in an amount to be determined according to proof by Plaintiffagainst Gregory, Hausauer, and Robb.
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SEVENTH CLAIM FOR RELIEF State Common Law Claim fof Intentional Infliction of Emotional Distress (Against Defendants Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Rarnilo and Selby) I! L Plaintiffincorporates by reference and realleges paragraphs 1 to 81 and 88 to 90 ofthis complaint. I 12. In the course of performing their ministerial, operational, and non-discretionary job responsibilities, Defendants engaged in extreme or outrageous conduct with the intention of, and with reckless disregard for, call&ing emotional distress to Plaintiff. 113. As a result of Defendants' actions, Plaintiffsuffered severe and extreme emotional distress alleged herein. 114. Plaintiff requests that the Court award compensatory damages in an amount to be determined according to proof by Plaintiff against Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Ramilo and Selby in their individual capacities.
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EIGHTH CLAIM FOR RELIEF State Common Law Claim for Negligent Infliction of Emotional Distress (Against Defendants Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Ramilo and Selby)
115. Plaintiff incorporates by reference and realleges paragraphs 1 to 81 and 88 to 90 of this complaint.
116. Defendants owed Plaintiff a ministerial, operational, and non-discretionary duty to take reasonable prec!llltions to protect Plaintiff from harassment, abuse, assaults and discrimination that can be reasonably anticipated.
117. Defendants negligently failed to protect Plaintiff from harassment, abuse, assaults, and discrimination based upon his sexual orientation and sex that could have been reasonably anticipated. Defendants' negligent failure to protect Plamtiff from harassment, abuse, assaults, and discrimination based upon his sexual orientation and sex was done in bad faith.
118. As a result of defendants' negligence, plaintiffexperienced severe and extreme emotional distress that had a physical impact upon plaintiff alleged herein.
119. Plaintiffrequests that the Court award compensatory damages in an amount to be determined according to proofby Plaintiff against Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Ramilo and Selby in their iodivtdual capacities.
26

Case 3:00-cv-00050-RAM-RAM Document 1-2638659 Filed 01/28/00 Page 27 of 28
REffiJEST FOR RELIEF WHEREFORE, Plaintiffrespa:tfully requests that the Court (a) Issue an injwtction ordering Defendant Gregory in his official capacity to ensure
that Plaintiff is awarded a Washoe Cowtty School District diploma. (b) Award compensatory damages in an amount to be detennined according to proof
by Plaintiff against all Defendants in their individual capacities; (c) Award punitive damages in such other amount as the jury may determine is
sufficient to punish them for and deter others from committing the constitutional violations alleged herem. (d) Award Plaintiff his costs, expenses, and reasonable attorneys' fees pursuant to, inter alia, 42 U.S.C. § 1988 and other federal and state laws. (e) Gt-ant su.ch other and further relief as the Court may deem just and proper.
Dated: January .lE_, 2000
Respectfully submitted, JON W. DAVIDSON
DONI GEWT.RTZMAN
LAMBDA LEGAL DEFENSE AND EDUCATION FUND. INC.
By~W,~~ ~Jon W. Davidson Attorneys for Plaintiff Derek R Henkle
27

Case 3:00-cv-00050-RAM-RAM Document 1-2638659 Filed 01/28/00 Page 28 of 28

DEMANPFORJURYiruAL
Pursuant to Rule 38(b). Federal Rules of Civil Procedure, and Rule 38-1, Local Rules,
United States District Court, District ofNevada, Plaintiffs demand trial by jury for all of the
issues pled herein so triable.

Dated: January J-ZS, 2000

Respectfully submitted,

JONW.DAVIDSON

DONI GEWIRTZMAN LAMBDA LEGAL DEFENSE

AND

EDUCATION

FUND,

INC.

Attorneys for Pl.UntiffDerek R. Henkle

2&

 
 Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 1 of 30

1 MICHAEL F. TUBACH PETER OBSTLER
2 LUANN L. SIMMONS O'MELVENY & MYERS LLP
3 Embarcadero Center West 275 Battery Street
4 San Francisco, California 94111-3305 Telef!hone: (415) 984-8700
5 Facstmile: (415) 984-8701
6 JON W. DAVIDSON LAMBDA LEGAL DEFENSE AND EDUCATION
7 FUND, INC. 6030 Wilshire Blvd., Suite 200
8 Los Angeles, California 90036 Telephone: (323) 937-2728
9 Facstmile: (323) 937-0601
10 DONI GEWIRTZMAN LAMBDA LEGAL DEFENSE AND EDUCATION
11 FUND, INC. 120 Wall Street, Suite 1500
12 New York, New York 10005 Telephone: (212) 809-8585
13 Facstmile: (212) 809-0055

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14 Attorneys for Plaintiff
15 DEREK R. HENKLE

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF NEVADA

18 19 DEREK R. HENKLE,

20

Plaintiff,

21

v.

22 ROSS GREGORY, in his official and individual capacity; DENISE
23 HAUSAUER, LORETTA RENDE, JOE ANASTASIO, ROBERT FLOYD,
24 SERENA ROBB, ARNEL RAMILO, and GLEN SELBY, in their individual
25 capacities; and the WASHOE COUNTY SCHOOL DISTRICT, a political
26 subdivision of the State ofNevada,

27

Defendants.

Case No. CV-N-00-0050-HDM-RAM FIRST AMENDED COMPLAINT JURY DEMAND

28
FIRST AMENDED COMPLAINT
CV-N-00-0050-HD~M
1-7-

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 2 of 30

I

JURISDICTION AND VENUE

2

I. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C.

3 Sections 1331 and 1343 because the matters in controversy arise under the Constitution

4 and laws of the United States. This Court has supplemental jurisdiction to hear the state

5 claims of Plaintiff Derek R. Henkle ("Plaintiff') under 28 U.S.C. Section 1367(a).

6

2. Jurisdiction also is conferred upon this Court pursuant to 28 U.S.C.

7 Section 1332 because, as alleged below, there is complete diversity of citizenship between

8 the Plaintiff and all Defendants and the matter in controversy, exclusive of interest and

9 costs, exceeds the sum of seventy-five thousand dollars.

10

3. Plaintiff has complied with the requirements of Nevada law waiving

II sovereign immunity, set forth in Nev. Rev. Stat. Ann. Sections 41.031 et seq.

12

4. Venue is proper in this Court under 28 U.S.C. Section 1391(b)

13 because a substantial part of the events that gave rise to Plaintiffs claims took place

14 within the Northern Division of the District of Nevada.

15

16

PRELIMINARY STATEMENT

17

5. This is a civil rights action against officials and employees of the

18 Washoe County School District (the "District") and the District itself for depriving

19 Plaintiff Derek R. Henkle of established constitutional, statutory and common law rights.

20

6. Plaintiff attended Galena High School, Washoe High School, and

21 Wooster High School, all of which are public high schools in the Washoe County School

22 District. While attending these schools, Plaintiffs classmates routinely subjected him to

23 severe and pervasive verbal and physical harassment on school grounds on the basis of

24 Plaintiffs sexual orientation and his sex. This harassment occurred on a near-daily basis

25 beginning in the Fall of 1995 and continued until he was forced to leave the public school

26 system in February of 1997. Plaintiff continually was harangued by his classmates, who

27 referred to him using terms such as "faggot," "queer," "fairy," "butt-pirate," "sissy," "ass

28 Iicker," "AIDS whore," and "fucking faggot" and threatened to assault, injure, or kill
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
2

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 3 of 30

1 Plaintiff. On more than one occasion, Plaintiff was physically assaulted by fellow 2 students while on school property. Defendants were aware of the verbal and physical 3 harassment and abuse, and had the authority to institute corrective and preventative 4 measures, but Defendants repeatedly and intentionally failed to take reasonable measures 5 to stop it. Rather than appropriately addressing the harmful behavior of other students, 6 Defendants treated Plaintiff as ifhe were the problem and shifted Plaintiff from school to 7 school throughout the District. Defendants failed to act, and took affirmative actions 8 detrimental to Plaintiff, because of Plaintiffs sexual orientation, sex, and expression about 9 his sexual orientation. Defendants deprived Plaintiff of the benefits of a high school 10 education, and caused his transfer at the age of 16 out of the Washoe County School II District to an adult education program that could not provide Plaintiff with a high school

12 diploma.

13

7. Specifically, this action challenges Defendants' denial of Plaintiffs

14 rights secured under the First and Fourteenth Amendments to the United States

15 Constitution, 42 U.S.C. Section 1983, and Title IX of the Education Amendments of

16 1972,20 U.S.C. § 1681 et seq. ("Title IX"), and Defendants' tortious negligence,

17 negligent supervision and training, intentional infliction of emotional distress, and

18 negligent infliction of emotional distress under Nevada state law.

19

20

PARTIES

21

8. From August 1994 until February 1997, Plaintiff DEREK R.

22 HENKLE was a student attending public schools in the Washoe County School District,

23 County of Washoe, State of Nevada. Plaintiff currently is a citizen of the State of

24 Georgia. Plaintiff is a gay male.

25

9. Defendants ROSS GREGORY, Principal, Galena High School;

26 DENISE HAUSAUER, Assistant Vice Principal, Galena High School; LORETTA

27 RENDE, Teacher, Galena High School; JOE ANASTASIO, Washoe County School

28 District Director of Student Services; ROBERT FLOYD, Principal, Washoe High
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
3

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 4 of 30

1 School; SERENA ROBB, Principal, Wooster High School, ARNEL RAMILO, Officer, 2 Washoe County School Police; and GLEN SELBY, Officer, Washoe County School

3 Police, are or were at all relevant times individuals working as employees and agents of

4 the Washoe County School District, a public school district organized and operated under

5 the laws of the State ofNevada. All Defendants currently are citizens ofNevada.

6

I0. Defendant WASHOE COUNTY SCHOOL DISTRICT is and was at

7 all relevant times a political subdivision of the State of Nevada with jurisdiction over

8 public schools in Washoe County, including Galena, Washoe and Wooster High Schools.

9

II. Plaintiff alleges that each of the Defendants performed, participated

10 in, aided and/or abetted in some manner the acts averred herein, proximately caused the

II damages averred below, and is liable to Plaintiff for the damages and other relief sought

12 herein.

13

12. Based upon information and belief, Plaintiff alleges that Defendant

14 Gregory was responsible for the training and supervision of Defendants Hausauer and

15 Rende.

16

13. Based upon information and belief, Plaintiff alleges that Defendant

17 Hausauer was responsible for the training and supervision of Defendant Rende.

18

14. Based upon information and belief, Plaintiff alleges that Defendant

19 Robb was responsible for the training and supervision of Defendants Ramilo and Selby.

20

21

STATEMENT OF FACTS

22

15. Galena High School ("Galena"), Washoe High School ("Washoe"),

23 and Wooster High School ("Wooster") are public high schools in the District.

24

25

Galena High School

26

16. Plaintiff Derek R. Henkle attended Galena from August 1994 until

27 January 1996. During that time, Ross Gregory ("Gregory") was the Principal at Galena,

28 Denise Hausauer ("Hausauer") was the Assistant Vice Principal at Galena, and Loretta
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
4

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 5 of 30

1 Rende ("Rende") was a teacher at Galena.

2

17. Prior to attending Galena, Plaintiff was enrolled at Washoe County

3 School District's Pine Middle School, in a gifted and talented program. Due to Plaintiffs

4 intellectual abilities, Plaintiff skipped eighth grade and was enrolled at Galena in a special

5 program for gifted and talented students.

6

18. In the early Fall of 1995, Plaintiff appeared on a local public access

7 television program entitled "Set Free." On the show, he participated in a discussion on

8 the subject of gay students and their experiences in high school.

9

19. From that point on until he was forced to leave Galena, Plaintiff

10 experienced a constant barrage of harassment, assaults, intimidation, and discrimination

II from Galena students based on the fact that Plaintiff is gay and a male.

12

20. The harassment, assaults, intimidation, and discrimination occurred

13 during school hours and on school grounds.

14

21. Plaintiff made repeated reports directly to Defendants Hausauer and

15 Rende about the incidents of harassment, assault, intimidation and discrimination.

16

22. Defendants Gregory, Hausauer and Rende were aware of the

17 harassment, assaults, intimidation, and discrimination suffered by Plaintiff.

18

23. Defendants Gregory, Hausauer, and Rende had the authority to take

19 corrective and preventative action to stop the harassment, assaults, intimidation, and

20 discrimination suffered by Plaintiff.

21

24. Defendants Gregory, Hausauer, and Rende deliberately, purposefully

22 and intentionally failed to take reasonable steps to end the harassment, assaults,

23 intimidation, and discrimination suffered by Plaintiff.

24

25. Defendants Gregory, Hausauer and Rende failed to take the steps

25 necessary to prevent future incidents of harm to Plaintiff that were foreseeable given the

26 past incidents of harassment, assault, intimidation and discrimination.

27

26. Based upon information and belief, this failure to take action

28 departed from school and district procedures for dealing with sexual harassment, violence,
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
5

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 6 of 30

1 abuse and/or discrimination.

2

27. The incidents at Galena included:

3

a. In the fall semester of 1995, Plaintiff was approached by several male

4 Galena students on school property who called him "fag," "butt pirate," "fairy" and

5 "homo." One of the students suggested that the group tie Plaintiff to the back of a truck

6 and drag him down a nearby road. While on school property, the students pursued Plaintiff

7 and succeeded in lassoing him around the neck with a rope three separate times. Plaintiff

8 finally was able to escape to a classroom and immediately used an internal phone to contact

9 Defendant Hausauer's office. Plaintiff waited almost two hours for anyone to come to the

10 classroom where he hid in fear. When Defendant Hausauer finally arrived, she responded

II to Plaintiffs recounting of the incident with laughter. Defendant Gregory also was aware

12 of the incident. Instead of conducting an immediate investigation and punishing the

13 harassers, Defendants Gregory and Hausauer took no action against the students who

14 assaulted Plaintiff for several months, despite knowing the identities of some of the

15 students who were involved. Actions belatedly taken by Defendants Gregory and Hausauer

16 occurred only after Plaintiff had been driven from Galena.

17

b. During the fall semester of the 1995-1996 school year, Plaintiff was

18 enrolled in a mandatory English class taught and supervised by Loretta Rende.

19 Throughout the semester, Plaintiff repeatedly was harassed, intimidated, and subjected to

20 discrimination by other students based upon Plaintiffs sexual orientation, sex, and

21 expression. Students in the class repeatedly wrote the word "fag" on the "white board"

22 and sent notes to Plaintiff calling him a "fag." Students also drew pictures of men

23 engaged in explicit sex acts on the "white board" and would call Plaintiffs attention to the

24 pictures in front of other students. Defendant Rende was fully aware of the harassment,

25 intimidation and discrimination as well as the identity of the harassers, but deliberately

26 and purposefully took no steps to end the harassment or to discipline the harassers.

27 Instead, Plaintiff was admonished by Defendant Rende that his sexuality was a private

28 matter and he should not discuss it with other students. Defendant Hausauer also was
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
6

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 7 of 30

1 aware of the incidents in Defendant Rende's English class and of Defendant Rende's acts

2 and omissions, but made no effort to stop the harassment or to correct Defendant Rende's

3 handling of the situation. Based on information and belief, Defendant Gregory also was

4 aware of the incidents in Defendant Rende's English class and was aware of and endorsed

5 Defendant Rende's acts and omissions, but made no effort to stop the harassment or to

6 correct Defendant Rende's handling of the situation.

7

c. On or around December 1995, Plaintiff was in the Galena discipline

8 office reporting another incident of harassment when several students ran by the office,

9 shouted anti-gay epithets at him, and threw a metal object at him that missed Plaintiff and

10 stuck in the wall. A school administrator witnessed the incident and filed a report.

11 Defendant Hausauer was aware of the incident and deliberately and intentionally made no

12 effort to investigate or discipline Plaintiffs attackers. This incident resulted in Plaintiff

13 having an emotional breakdown in Defendant Hausauer's office. Based upon information

14 and belief, Defendant Gregory also was aware of the incident and deliberately and

15 intentionally made no effort to investigate or discipline Plaintiffs attackers.

16

d. Plaintiffs attackers routinely stated that Plaintiffs sexual orientation

17 was disgusting and offensive because he was a male.

18

28. During the fall semester of 1995, Plaintiff expressed himself about

19 his gay sexual orientation. For example, he wore buttons on his backpack that stated "We

20 Are Everywhere" and "Out." Plaintiff also spoke about his pro-gay viewpoints on various

21 topics while at school.

22

29. Plaintiffs expression was fully protected by the First Amendment.

23

30. Defendants Gregory, Hausauer, and Rende were aware of the content

24 and viewpoint of Plaintiff's expressive activity.

25

31. On more than one occasion, Defendants Hausauer and Rende told

26 Plaintiff not to discuss his sexual orientation with other students.

27

32. Based upon information and belief, Defendant Gregory was aware of

28 and endorsed Defendant Hausauer's acts and omissions in response to Plaintiffs repeated
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
7

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 8 of 30

1 complaints of harassment, assault, intimidation, and discrimination, and to Plaintiffs

2 expressiOn.

3

33. Because of Defendants Gregory, Hausauer and Rende's failure to

4 provide Plaintiff with an educational environment free from harassment and assaults and

5 Plaintiffs resulting fear of further harassment and assaults, Plaintiff was unable to attend

6 Galena any longer and Plaintiff asked to leave Galena at the end of the fall 1995 semester.

7

8

Washoe High School

9

34. Washoe High School is an alternative high school.

10

35. Washoe was not a suitable placement for Plaintiff.

II

36. Defendant Anastasio made the decision to transfer Plaintiff to

12 Washoe High.

13

37. As a condition for a transfer out of Galena, Plaintiff was told by

14 Defendant Anastasio that Plaintiff must treat his sexuality as a private matter and that he

15 must not discuss it with anyone at his next school.

16

38. As a result of Defendants' purposeful efforts to silence Plaintiffs

17 protected speech, Plaintiff was chilled and deterred from engaging in protected speech at

18 Washoe on the subject of his sexual orientation, and, among other things, removed the

19 buttons stating "We Are Everywhere" and "Out" from his backpack when he began

20 attending Washoe.

21

39. Plaintiff attended Washoe High School from January 1996 through

22 May of 1996. During that time, Defendant Bob Floyd was the principal at Washoe.

23

40. During his attendance at Washoe High, Defendant Floyd repeatedly

24 told Plaintiff not to discuss his sexual orientation with others. In addition, during a

25 meeting in Defendant Floyd's office, Defendant Floyd told Plaintiff to stop acting like a

26 "fag."

27

41. While Plaintiff diminished his expression about his sexual orientation

28 and of his pro-gay viewpoints, he did not totally succumb to Defendants' censorship
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
8

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 9 of 30

efforts and still expressed his identity and viewpoints on certain occasions.

2

42. Plaintiffs expression was fully protected by the First Amendment.

3

43. Defendant Floyd was aware of the content and viewpoint of

4 Plaintiffs expressive activity.

5 6 7

requested

a

44. transfer

Frustrated by to a traditional

the lack of educational opportunity at Washoe, Plaintiff high school that would provide him with an education

suited to his intellectual abilities.

8 9 10

45. Plaintiff initially was told by Defendant Floyd that such a transfer was not possible because he was an openly gay male and that a traditional high school therefore would not be appropriate for him.

II

12

Wooster High School

13 14

46. Eventually, it was decided that Plaintiff would transfer to Wooster High School for the Fall 1996 school year.

15 16

47. Plaintiff was told by Defendant Floyd not to disclose his sexual orientation to others while at Wooster.

17

48. As a result of Defendant Floyd's purposeful effort to silence

18 Plaintiffs speech, Plaintiff was chilled and deterred from engaging in protected

19 20

expression related to his sexual orientation. He did not discuss his sexual orientation with or express pro-gay viewpoints to other students at Wooster during his first months there.

21

49. Plaintiff attended Wooster High School from August 1996 to

22 February 1997. During that time, Defendant Serena Robb was principal ofWooster.

23

50. While at Wooster, Plaintiff experienced a constant barrage of anti-

24 gay harassment, assaults, intimidation, and discrimination from his classmates based on

25 the fact that he is gay and a male, which his classmates learned from students who

26 previously had attended Galena with Plaintiff.

27 28

51. The harassment, assaults, intimidation, and discrimination at Wooster occurred during school hours and on school grounds.

9

FIRSTCAVM-NE-N00D-E00D5C0-OHMDPML-ARIANMT

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 10 of 30

I

52. Plaintiff made repeated reports to school administrators about the

2 incidents of harassment, assaults, intimidation and discrimination.

3

53. Defendant Robb was aware of the harassment, assaults, intimidation,

4 and discrimination suffered by Plaintiff.

5

54. Defendant Robb had the authority to take corrective and preventative

6 action to stop the harassment, assaults, intimidation, and discrimination suffered by

7 Plaintiff.

8

55. Defendant Robb deliberately, purposefully, and intentionally failed to

9 take reasonable steps to end the harassment, assaults, intimidation, and discrimination

10 suffered by Plaintiff.

II

56. Defendant Robb failed to take steps necessary to prevent future

12 incidents of harm to Plaintiff that were foreseeable given the past incidents of harassment,

13 assault, intimidation and discrimination.

14

57. Based upon information and belief, this failure to take action

15 departed from district and school procedures for dealing with harassment, violence, abuse,

16 and/or discrimination.

17

58. While at Wooster, Plaintiff was approached on school property by

18 several students who began laughing at him and barraging him with gay epithets directed

19 at Plaintiff's sexual orientation and his sex. One of the students approached Plaintiff and

20 began punching him in the face, calling him "bitch." The other students encouraged the

21 student punching Plaintiff to continue his attack. As a result of the attack, Plaintiff began

22 bleeding profusely from his lip, nose and head.

23

59. The attack on Plaintiff was witnessed by Defendants Ramilo and

24 Selby, who were present at the scene but deliberately, purposefully and intentionally took

25 no action to assist Plaintiff or discipline Plaintiff's harassers, despite having the authority

26 and ability to do so.

27

60. Subsequently, Defendants Ramilo and Selby deliberately,

28 purposefully and intentionally discouraged Plaintiff from filing a report and would not let
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
10

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 11 of 30

1 him file a complaint without his mother's permission.

2

61. Defendants Ramilo and Selby also deliberately, purposefully, and

3 intentionally discouraged Plaintiff from describing the incident as a hate crime and

4 discouraged him from calling the Reno Police Department to report the incident. They

5 further refused to arrest his attacker despite knowing the identity of the attacker.

6

62. Based upon information and belief, Defendant Robb was aware of

7 Defendants Ramilo and Selby's failure to take appropriate action in response to the attack

8 on Plaintiff.

9

63. Plaintiff was forced to seek medical attention and to miss days of

10 school as a result of the attack.

11

64. After his initial months of silence to other students, and in light of

12 others' attacks on him, Plaintiff expressed himself about his sexual orientation to other

13 students.

14

65. Plaintiffs expression was fully protected by the First Amendment.

15

66. Defendant Robb was aware of the content and viewpoint of

16 Plaintiffs expressive activity.

17

67. Defendant Robb failed to provide Plaintiff with a safe educational

18 environment free from constant harassment, discrimination and abuse.

19

68. Defendants Floyd and Anastasio agreed that Plaintiff should return to

20 Washoe High School for the spring 1997 semester.

21

69. Defendant Floyd later reversed himself and would not accept Plaintiff

22 at Washoe notwithstanding that there was space available at Washoe for Plaintiff at the

23 time.

24

70. In February 1997, systematically deprived of the benefits of a high

25 school education, 16 year-old Derek R. Henkle was placed in an adult education program

26 at Truckee Meadows Community College at the direction of Defendants Anastasio and

27 Floyd.

28

71. Because he was not enrolled in a public high school, Plaintiff was

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11

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 12 of 30

I rendered ineligible for a high school diploma.

2

3

General Factual Allegations

4

72. Defendants' discriminatory conduct, their intentional, reckless, and

5 negligent failure to take action to remedy the harassment and abuse of Plaintiff, and their

6 failure to provide Plaintiff with a safe education in a suitable environment caused Plaintiff

7 to suffer severe and extreme emotional distress and psychological damage, including but

8 not limited to, an inability to concentrate on his studies, depression, debilitating fear,

9 despair, anger, humiliation, and anxiety. Plaintiff also suffered bodily injury, including,

10 but not limited to, physical injury, disruption of sleep, insomnia, loss of appetite, and

11 suicide attempts. As a result of Defendants' actions, Plaintiff sought psychological

12 counseling, and has been diagnosed with post-traumatic stress disorder. Furthermore,

13 Plaintiff lost substantial amounts of school time as a result of Defendants' actions.

14

73. As a result of Defendants' actions, Plaintiff was deprived of a high

15 school diploma. The lack of a high school diploma has had a serious adverse impact on

16 Plaintiffs academic, economic, and professional future.

17

74. Absent Defendants' actions alleged herein, Plaintiff would have

18 received a high school diploma from Galena High School and the Washoe County School

19 District.

20

75. Based upon information and belief, Defendant District and/or

21 Defendant Gregory, in his official capacity as Principal of Galena High School, are

22 responsible for ensuring that all Galena students who are entitled to receive a Washoe

23 County School District diploma obtain one.

24

76. At all relevant times, Defendants Anastasio, Gregory, Hausauer,

25 Rende, Floyd, Robb, Ramilo and Selby were acting within the course and scope of their

26 employment and under color of state and local law.

27

77. The specific incidents of discrimination, harassment and failure to

28 take action alleged herein are merely representative, not exhaustive. A complete list of
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
12

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 13 of 30

I the incidents suffered by Plaintiff during his high school years in the Washoe County

2 School District would be too lengthy to detail in this complaint.

3

78. On numerous occasions, Plaintiff reported the incidents of

4 harassment and abuse he suffered to individual Defendants.

5

79. Defendants failed to take steps to address or prevent the harm to

6 Plaintiff, including, but not limited to, fully investigating Plaintiff's complaints of

7 harassment; disciplining students who harassed Plaintiff; educating faculty and students

8 about District policies and procedures; and training faculty and students so as to prevent

9 discrimination or harassment in the future.

10

80. The acts and omissions of Defendants not only failed to remedy, but

II also fostered and promoted, the harassment of Plaintiff by other students.

12

81. Defendants' direct actions in providing inappropriate educational

13 placements for Plaintiff and censoring Plaintiff further harmed him.

14

82. As a direct, legal, and proximate result of Defendants' violations of

15 Plaintiff's legal rights, Plaintiff has been damaged in an amount well in excess of seventy-

16 five thousand dollars.

17

18

Additional Allegations- Federal Constitutional and Statutory Claims

19

83. Upon information and belief, Defendants have policies and

20 procedures to prevent and remedy harassment, discrimination, and/or violence suffered by

21 all students, and take appropriate action to prevent and remedy such harms for female

22 students, yet did not do so for Plaintiff, because of his sexual orientation and his sex.

23

84. Defendant District received funds and financial assistance from the

24 United States federal government during the period when Plaintiff was enrolled as a

25 student in the District's school system.

26

85. The acts and omissions alleged above by Defendants were committed

27 with deliberate indifference towards the well-being and rights of Plaintiff.

28

86. All of the acts or omissions alleged above by Defendants were

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13

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 14 of 30

1 committed intentionally and purposefully because of Plaintiffs sexual orientation.

2

87. The acts and omissions alleged above by Defendants were committed

3 intentionally and purposefully because of Plaintiffs sex.

4

88. The acts and omissions alleged above by Defendants were committed

5 intentionally and purposefully because of the content and viewpoint of Plaintiffs

6 expression about his sexual orientation.

7

89. All of the acts alleged above by Plaintiffs classmates at Galena,

8 Washoe and Wooster High Schools were committed on school grounds, during school

9 hours, under the operations or supervision of Defendants.

10

11

Additional Allegations- State Tort Claims

12

90. At all times relevant herein, Defendants were acting in a ministerial,

13 operational, and non-discretionary capacity and/or performing ministerial, operational,

14 and non-discretionary functions or duties.

15

91. Defendants owed Plaintiff a duty of care to ensure the safety and

16 well-being of Plaintiff and all students. This overall duty of care encompassed a duty to

17 supervise the conduct of all students, to enforce rules and regulations necessary for the

18 protection of students, and to take appropriate measures to protect students from the

19 misconduct of other students. Defendants, in the course and scope of their duties as

20 employees of District, had a duty to exercise due care to protect Plaintiff from harassment

21 and other misconduct by students and by other Defendants. Encompassed within

22 Defendants' duty to protect Plaintiff and other students was a duty to exercise due care in

23 investigating Plaintiffs complaints of assault, harassment, and discrimination by other

24 students; to take reasonable precautions to protect Plaintiff from harassment, assaults,

25 abuse and discrimination that reasonably could be anticipated; to make police reports of

26 the crimes; to take prompt and appropriate action to protect Plaintiff from further

27 harassment and fear; and to remove dangerous students from the school, if necessary.

28 Defendants owed every duty alleged in this paragraph to Plaintiff.
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
14

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 15 of 30

1

92. At all relevant times herein, Defendants Gregory, Hausauer, and

2 Robb owed a ministerial, operational, and non-discretionary duty to Plaintiff to take

3 reasonable care in training and supervising their employees and subordinates.

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
15

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 16 of 30

I

FIRST CLAIM FOR RELIEF

2

U.S. Constit. Amend. XIV, Equal Protection on the Basis of Sexual Orientation

3

42 U.S.C. Section 1983

4 (Against Defendant Gregory in his official capacity and Defendants Anastasio, Gregory,

5

Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities)

6

7

93. Plaintiff incorporates by reference and realleges paragraphs I to 89 of

8 this complaint.

9

94. The above-described conduct by Defendants Anastasio, Gregory,

10 Hausauer, Rende, Floyd, Robb, Ramilo, and Selby violated the right of Plaintiff not to be

II deprived of equal protection of the laws on the basis of sexual orientation under the

12 Fourteenth Amendment to the United States Constitution.

13

95. Plaintiff requests that the Court issue an injunction ordering

14 Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe

15 County School District diploma, and that the Court award compensatory and punitive

16 damages in an amount to be determined according to proofby Plaintiff against Defendants

17 Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual

18 capacities.

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
16

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 17 of 30

SECOND CLAIM FOR RELIEF

2

U.S. Constit. Amend. XIV, Equal Protection on the Basis of Sex

3

42 U.S.C. Section 1983

4 (Against Defendant Gregory in his official capacity and Defendants Anastasio, Gregory,

5

Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities)

6

7

96. Plaintiff incorporates by reference and realleges paragraphs I to 89 of

8 this complaint.

9

97. The above-described conduct by Defendants Anastasio, Gregory,

10 Hausauer, Rende, Floyd, Robb, Ramilo, and Selby violated the right of Plaintiff not to be

II deprived of equal protection of the laws on the basis of sex under the Fourteenth

12 Amendment to the United States Constitution.

13

98. Plaintiff requests that the Court issue an injunction ordering

14 Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe

15 County School District diploma, and that the Court award compensatory and punitive

16 damages in an amount to be determined according to proof by Plaintiff against Defendants

17 Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual

18 capacities.

19

20

21

22

23

24

25

26

27

28

FIRST AMENDED COMPLAINT

17

CV-N-00-0050-HDM-RAM

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 18 of 30

I

THIRD CLAIM FOR RELIEF

2

U.S. Constit. Amend. I, Freedom of Speech

3

42 U.S.C. Section 1983

4 (Against Defendant Gregory in his official capacity and Defendants Anastasio, Gregory,

5

Hausauer, Rende, Floyd, Ramilo and Selby in their individual capacities)

6

7

99. Plaintiff incorporates by reference and realleges paragraphs I to 89 of

8 this complaint.

9

100. The above-described conduct by Defendants Anastasio, Gregory,

10 Hausauer, Rende, Floyd, Robb, Ramilo, and Selby violated Plaintiffs right to freedom of

II speech under the First Amendment of the United States Constitution by censoring and

12 chilling Plaintiffs speech and deterring him from exercising his First Amendment rights.

13

I0 I. Plaintiff requests that the Court issue an injunction ordering

14 Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe

15 County School District diploma, and that the Court award compensatory and punitive

16 damages in an amount to be determined according to proofby Plaintiff against Defendants

17 Anastasio, Gregory, Hausauer, Rende, Floyd, Ramilo and Selby in their individual

18 capacities.

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
18

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 19 of 30

1

FOURTH CLAIM FOR RELIEF

2

U.S. Constit. Amend. I, Freedom of Speech

3

42 U.S.C. Section 1983

4 (Against Defendant Gregory in his official capacity and Defendants Anastasio, Gregory,

5

Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities)

6

7

102. Plaintiff incorporates by reference and realleges paragraphs 1 to 89 of

8 this complaint.

9

103. The above-described conduct by Defendants Anastasio, Gregory,

10 Hausauer, Rende, Floyd, Robb, Ramilo, and Selby violated the right of Plaintiff to be free

II from retaliatory treatment based upon the exercise of his freedom of speech under the

12 First Amendment to the United States Constitution.

13

104. Plaintiff requests that the Court issue an injunction ordering

14 Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe

15 County School District diploma, and that the Court award compensatory and punitive

16 damages in an amount to be determined according to proof by Plaintiff against Defendants

17 Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual

18 capacities.

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
19

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 20 of 30

I

FIFTH CLAIM FOR RELIEF

2

Title IX of the Education Amendments of 1972, Sex Based Discrimination

3

20 U.S.C. Section 1681 et seq.

4

(Against Defendant Washoe County School District)

5

6

105. Plaintiff incorporates by reference and realleges paragraphs I to 89 of

7 this complaint.

8

I06. The above-described conduct by the District discriminated against

9 and harassed Plaintiff on the basis of his sex, and such discriminatory conduct deprived

10 Plaintiff of access to the educational opportunities and benefits of the District, including a

II high school education and diploma, in violation of Title IX.

12

I07. Plaintiff requests that the Court issue an injunction ordering

13 Defendant District to ensure that Plaintiff is awarded a Washoe County School District

14 diploma, and that the Court award compensatory and punitive damages in an amount to be

15 determined according to proof by Plaintiff against Defendant District.

16

17

18

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV -N-00-0050-HDM-RAM
20

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 21 of 30

I

SIXTH CLAIM FOR RELIEF

2

Title IX of the Education Amendments of 1972, Sex Based Discrimination

3

20 U.S.C. Section 1681 et seq.

4

(Against Defendant Washoe County School District)

5

6

I08. Plaintiff incorporates by reference and realleges paragraphs I to 89 of

7 this complaint.

8

109. The above-described conduct by Plaintiffs classmates at Galena and

9 Wooster High Schools harassed Plaintiff on the basis of his sex. Such harassment was

10 pervasive, severe and objectively offensive, created a hostile climate based on sex, and

II deprived Plaintiff of access to the educational opportunities and benefits of the District,

12 including a high school education and diploma. Defendant District had actual notice

13 through its employees, including the individual Defendants named herein, of the

14 harassment.

15

II 0. Defendant District acted unreasonably and with intentional

16 indifference to the harassment of Plaintiff and the creation of a hostile climate based on

17 sex and subjected Plaintiff to further harassment by his classmates on the basis of his sex,

18 in violation of Title IX.

19

Ill. Plaintiff requests that the Court issue an injunction ordering

20 Defendant District to ensure that Plaintiff is awarded a Washoe County School District

21 diploma, and that the Court award compensatory and punitive damages in an amount to be

22 determined according to proof by Plaintiff against Defendant District.

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
21

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 22 of 30

I

SEVENTH CLAIM FOR RELIEF

2

Title IX of the Education Amendments of 1972, Sex Based Discrimination

3

42 U.S.C. Section 1983

4 (Against Defendant Gregory in his official capacity and Defendants Anastasio, Gregory,

5

Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities)

6

7

112. Plaintiff incorporates by reference and realleges paragraphs I to 89 of

8 this complaint.

9

113. The above-described conduct by Defendants Anastasio, Gregory,

10 Hausauer, Rende, Floyd, Robb, Ramilo, and Selby discriminated against and harassed

II Plaintiff on the basis of his sex, and such discriminatory conduct deprived Plaintiff of

12 access to the educational opportunities and benefits of the District, including a high school

13 education and diploma, in violation of Title IX and 42 U.S.C. Section 1983.

14

114. Plaintiff requests that the Court issue an injunction ordering

15 Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe

16 County School District diploma, and that the Court award compensatory and punitive

17 damages in an amount to be determined according to proof by Plaintiff against Defendants

18 Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual

19 capacities.

20

21

22 23

24 25
26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
22

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 23 of 30

I

EIGHTH CLAIM FOR RELIEF

2

Title IX of the Education Amendments of 1972, Sex Based Discrimination

3

20 U.S.C. Section 1681 et seq.

4 (Against Defendant Gregory in his official capacity and Defendants Anastasio, Gregory,

5

Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual capacities)

6

7

115. Plaintiff incorporates by reference and realleges paragraphs I to 89 of

8 this complaint.

9

116. The above-described conduct by Plaintiff's classmates at Galena and

10 Wooster High Schools harassed Plaintiff on the basis of his sex. Such harassment was

II pervasive, severe and objectively offensive, created a hostile climate based on sex, and

12 deprived Plaintiff of access to the educational opportunities and benefits of the District,

13 including a high school education and diploma. Defendants had actual notice of the

14 harassment.

15

117. Defendants Anastasio, Gregory, Hausauer, Rende, Floyd, Robb,

16 Ramilo, and Selby acted unreasonably and with intentional indifference to the harassment

17 of Plaintiff and the creation of a hostile climate based on sex and subjected Plaintiff to

18 further harassment by his classmates on the basis of his sex, in violation of Title IX and 42

19 U.S.C. Section 1983.

20

118. Plaintiff requests that the Court issue an injunction ordering

21 Defendant Gregory in his official capacity to ensure that Plaintiff is awarded a Washoe

22 County School District diploma, and that the Court award compensatory and punitive

23 damages in an amount to be determined according to proofby Plaintiff against Defendants

24 Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their individual

25 capacities.

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
23

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 24 of 30

1

NINTH CLAIM FOR RELIEF

2

State Common Law Claim for Negligence

3 (Against Defendant District and Defendants Gregory, Hausauer, Rende, Anastasio, Floyd,

4

Robb, Ramilo and Selby in their individual capacities)

5

6

119. Plaintiff incorporates by reference and realleges paragraphs I to 82

7 and 90 to 92 of this complaint.

8

120. Defendants negligently failed to protect Plaintiff from harassment,

9 abuse, assaults, and discrimination in violation of Defendants' duty. Defendants'

10 negligent failure to protect Plaintiff from harassment, abuse, assaults, and discrimination

II was done in bad faith.

12

121. As a result of Defendants' negligence, Plaintiff was deprived of the

13 benefits of a high school education and diploma, and suffered physical and emotional

14 injuries alleged herein.

15

122. Plaintiff requests that the Court award compensatory damages in an

16 amount to be determined according to proof by Plaintiff against Defendant District and

17 Defendants Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Ramilo and Selby in their

18 individual capacities.

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
24

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 25 of 30

1

TENTH CLAIM FOR RELIEF

2

Common Law Claim for Negligent Training and Supervision

3

(Against Defendant District and Defendants Gregory, Hausauer, and Robb)

4

5

123. Plaintiff incorporates by reference and realleges paragraphs 1 to 82

6 and 90 to 92 of this complaint.

7

124. Defendants Gregory, Hausauer, and Robb were negligent in failing to

8 adequately train and supervise their employees and subordinates in violation of

9 Defendants' duty. Defendants' negligent failure to train and supervise was done in bad

10 faith.

11

125. As a result of the negligence of Defendant District and Defendants

12 Gregory, Hausauer, and Robb, Plaintiff was deprived of the benefits of a high school

13 education and diploma, and suffered physical and emotional injuries alleged herein.

14

126. Plaintiff requests that the Court award compensatory damages in an

15 amount to be determined according to proof by Plaintiff against Defendant District and

16 Defendants Gregory, Hausauer, and Robb.

17

18 19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
25

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 26 of 30

1

ELEVENTH CLAIM FOR RELIEF

2

State Common Law Claim for Intentional Infliction of Emotional Distress

3 (Against Defendant District and Defendants Gregory, Hausauer, Rende, Anastasio, Floyd,

4

Robb, Ramilo and Selby)

5

6

127. Plaintiff incorporates by reference and realleges paragraphs 1 to 82

7 and 90 to 92 of this complaint.

8

128. In the course of performing their ministerial, operational, and non-

9 discretionary job responsibilities, Defendants engaged in extreme or outrageous conduct

10 with the intention of, and with reckless disregard for, causing emotional distress to

11 Plaintiff.

12

129. As a result of Defendants' actions, Plaintiff suffered severe and

13 extreme emotional distress alleged herein.

14

130. Plaintiff requests that the Court award compensatory damages in an

15 amount to be determined according to proof by Plaintiff against Defendant District and

16 Defendants Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Ramilo and Selby in their

17 individual capacities.

18

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
26

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 27 of 30

1

TWELFTH CLAIM FOR RELIEF

2

State Common Law Claim for Negligent Infliction of Emotional Distress

3 (Against Defendant District and Defendants Gregory, Hausauer, Rende, Anastasio, Floyd,

4

Robb, Ramilo and Selby)

5

6

131. Plaintiff incorporates by reference and realleges paragraphs 1 to 82

7 and 90 to 92 of this complaint.

8

132. Defendants owed Plaintiff a ministerial, operational, and non-

9 discretionary duty to take reasonable precautions to protect Plaintiff from harassment,

10 abuse, assaults and discrimination that can be reasonably anticipated.

11

133. Defendants negligently failed to protect Plaintiff from harassment,

12 abuse, assaults, and discrimination based upon his sexual orientation and sex that could

13 have been reasonably anticipated. Defendants' negligent failure to protect Plaintiff from

14 harassment, abuse, assaults, and discrimination based upon his sexual orientation and sex

15 was done in bad faith.

16

134. As a direct and proximate result of Defendants' negligence, Plaintiff

17 experienced severe and extreme emotional distress that caused Plaintiff physical injury

18 and illness as alleged herein.

19

135. Plaintiff requests that the Court award compensatory damages in an

20 amount to be determined according to proof by Plaintiff against Defendant District and

21 Defendants Gregory, Hausauer, Rende, Anastasio, Floyd, Robb, Ramilo and Selby in their

22 individual capacities.

23

24
25

26
27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
27

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 28 of 30

I

REQUEST FOR RELIEF

2

WHEREFORE, Piaintiffrespectfully requests that the Court:

3

(I) Issue an injunction ordering Defendant District and Defendant

4

Gregory in his official capacity to ensure that Plaintiff is awarded a

5

Washoe County School District diploma;

6

(2) Award compensatory damages in an amount to be determined

7

according to proof by Plaintiff against Defendant District and all other

8

Defendants in their individual capacities;

9

(3) Award punitive damages against Defendant District and all other

IO

Defendants in their individual capacities in such other amount as the

II

jury may determine is sufficient to punish them for and deter others

I2

from committing the constitutional and statutory violations alleged

I3

herein;

I4

(4) Award Plaintiff his costs, expenses, and reasonable attorneys' fees

I5

pursuant to, inter alia, 42 U.S.C. § I988 and other federal and state

I6

laws;

I7

(5) Grant such other and further relief as the Court may deem just and

I8

proper.

I9

20

2I

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
28

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 29 of 30

1

Dated: May 26, 2000

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Respectfully submitted, MICHAEL F. TUBACH PETER OBSTLER LUANN L. SIMMONS O'MELVENY & MYERS LLP JON W. DAVIDSON DONI GEWIRTZMAN LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
By ~-f._.~.
Luann L. Simmons Attorneys for Plaintiff DEREK R. HENKLE
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
29

Case 3:00-cv-00050-RAM-RAM Document 22-2682385 Filed 05/30/00 Page 30 of 30

I

DEMAND FOR JURY TRIAL

2

Pursuant to Rule 38(b), Federal Rules of Civil Procedure, and Rule 38-1,

3 Local Rules, United States District Court, District of Nevada, Plaintiffs demand trial by 4 jury for all of the issues pled herein so triable.

5

6

Dated: May 26, 2000

7 8 9 10 II 12 13 14 15 16 17 SFLJ92574.1

Respectfully submitted,
MICHAEL F. TUBACH PETER OBSTLER LUANN L. SIMMONS O'MELVENY & MYERS LLP
JON W. DAVIDSON DONI GEWIRTZMAN LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
By~LO...:......::..;c-"'-£~~--- - Luann L. Simmons Attorneys for Plaintiff DEREK R. HENKLE

18

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT CV-N-00-0050-HDM-RAM
30

 
 Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 1 of 15

-- --~--

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

8 DEREK R. HENKLE,

)

)

9

Plaintiff,

)

)

10

vs.

)

)

11 ROSS GREGORY, in his official and

)

individual capacity, DENISE HAUSAUER, )

12 LORETTA RENDE, JOE ANASTASIO, )

ROBERT FLOYD, SERENA ROBB,

)

13 ARNEL RAMILO, and GLEN SELBY, in )

their individual capacities; and the

)

14 WASHOE COUNTY SCHOOL

)

DISTRICT, a political subdivision of the )

15 State of Nevada,

)

)

16

)

17

____

_

_

_

_

_

____D_ef_en_d_an_ts_. ___

_

_

)
)

CV -N-00-050-RAM
MEMORANDUM DECISION AND ORDER

18

Before this court is Defendants' Motion to Dismiss (Doc. #2 7). Plaintiff has opposed the

19 motion (Doc. #28) and Defendants have replied (Doc. #35).

20

BACKGROUND

21

Plaintiff, Derek R. Henkle, began his freshman year, in 1994, at Galena High School

22 ("Galena") after skipping the eighth grade. 1 (Doc. #22, pp. 4-5). In Falll995, Plaintiff appeared on

23 the local access channel's program "Set Free" where he participated in a discussion about gay high

24 school students and their experiences. (Id. at 5). From this point on, the alleged harassment began.

25 Plaintiff alleges that, during school hours and on school property, he endured constant harassment,

26

1 Because, in a motion to dismiss, the complaint should be liberally construed in favor of the plaintiff, and its factual
27 allegations taken as true, the recitation offacts are taken from plaintiffs first amended complaint (Doc. #22) and opposition

28

(Doc. #28). See Oscar v. University Students Co-operative Ass'n, 965 F.2d 783, 785 (9'h Cir. 1992), cert. denied, 506 U.S. 1020 (1992).

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 2 of 15

1 assaults, intimidation, and discrimination by other students because he is gay and male and school

2 officials, after being notified of the continuous harassment, failed to take any action. (!d.).

3

One incident of alleged harassment occurred in Fall 1995. Several students approached

4 Plaintiff, on Galena property, calling him "fag," "butt pirate," "fairy," and "homo." They lassoed him

5 around the neck and suggested dragging him behind a truck. (!d. at 6). Plaintiff escaped to a classroom

6 and used an internal phone to report the incident to Defendant, Assistant Vice Principal Hausauer.

7 After waiting nearly two hours, Defendant Hausauer arrived and responded with laughter. Defendant,

8 Principal Gregory, was also made aware of the incident, but they took no action against the alleged

9 harassers despite knowing their identities. (!d.).

1 0

Another alleged incident occurred in Plaintiffs English class. Students in the class continuously

11 wrote the word "fag" on the whiteboard and sent him notes calling him "fag." Students also drew

12 sexually explicit pictures and called Plaintiffs attention to them. Defendant Rende, Plaintiffs English

13 teacher, was allegedly aware of the harassment and identity of the harassers. Despite this knowledge,

14 Defendant Rende chose to tell Plaintiff that his sexuality was a private matter that should be kept to

15 himself, rather than end the harassment or discipline the harassers. Plaintiff alleges that Defendants

16 Gregory and Hausauer also knew of this incident, yet did nothing to remedy the situation. (!d. at 6-7).

17

Plaintiff also faced harassment when reporting the incidents to Galena's discipline office. (ld.

18 at 7). Several students, running by the office and shouting anti-gay epithets, threw a metal object at

19 the Plaintiff that missed him and stuck in the wall. A school administrator witnessed this incident and

20 a report was filed. (!d.). Again, it is alleged that no investigation was made or discipline taken, despite

21 the fact that school administrators were aware of the incident. Plaintiff suffered an emotional

22 breakdown because of this episode. (!d.).

23

At the end of the Fall1995 semester, Plaintiff asked to leave Galena because he feared further

24 harassment and assaults. (!d. at 8). Defendant Anastasio2 decided to transfer Plaintiff to Washoe High

25

26

2Defendant Anastasio, as of the time of this motion, has not been served because it is believed that he is no longer

living in the United States and Plaintiff has not been able to locate Anastasio's whereabouts for international service.
27 (Doc. #28, p. 1).

28

2

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 3 of 15

1 School ("Washoe"), an alternative high school. Plaintiffs transfer allegedly was conditioned on the

2 fact that he keep his sexuality to himself. (Id.). During Plaintiffs time at Galena, he wore buttons on

3 his backpack that said "We are everywhere" and "Out," however, upon his transfer to Washoe, he

4 removed the buttons. (ld.).

5

Defendant Floyd was the Principal at Washoe during Plaintiffs tenure from January 1996 to

6 May 1996. Defendant Floyd, on several occasions, allegedly told Plaintiff to keep quiet about his sexual

7 orientation and during one meeting with Plaintiff, Floyd told him to "stop acting like a fag." (ld.). On

8 some occasions, Plaintiff expressed his viewpoints and identity, but for the most part kept them to

9 himself. Finally, Plaintiff requested a transfer because of the lack of educational opportunities at

10 Washoe. (ld. at 8-9). Plaintiff alleges that Floyd initially told him the transfer was not possible because

11 Plaintiff was openly gay and a traditional high school would not be appropriate. (Id.).

12

Plaintiff was subsequently transferred to Wooster High School ("Wooster") and, once again,

13 prior to the transfer, was told by Floyd to keep his sexuality to himself. (ld. at 9). When Plaintiffs

14 classmates, at Wooster, learned his identity and the fact that he was gay, they allegedly harassed and

15 intimidated him during school hours and on school property. Plaintiff reported the incidents several

16 times, however, he alleges the administration took no action. (ld. at 10).

17

One particular incident of inaction occurred when Plaintiff was assaulted at Wooster. Several

18 students approached him shouting gay epithets, and one student punched him in the face, calling him

19 "bitch." The other students encouraged the attack. (Id.). School police, Defendants Ramilo and Selby,

20 allegedly witnessed the attack, but did nothing. In fact, Plaintiff alleges Defendants Ramilo and Selby

21 discouraged him from calling the assault a hate crime and from reporting it to the Reno Police

22 Department. Furthermore, Defendants refused to arrest the attacker despite knowing the identity. (!d.

23 at 11).

24

After this incident, Defendants Floyd and Anastasio agreed that Plaintiffshould be transferred

25 back to Washoe. However, Floyd later decided not to accept Plaintiff at Washoe despite having room

26 for him. Instead, Defendants placed Plaintiff in an adult education program at Truckee Meadows

27

28

3

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 4 of 15

1 Community College, thus making Plaintiff ineligible for a high school diploma because he was no

2 longer enrolled in a public high school. (!d. at 11-12).

3

This lawsuit followed as a result of Defendants' actions. At issue in Defendants' 12(b) (6)

4 Motion to Dismiss for Failure to State a Claim are: claims One and Two for violations of the Equal

5 Protection Clause of the Fourteenth Amendment based upon sexual orientation and sex, respectively,

6 both of which are brought pursuant to 42 U.S.C. 1983; claims Three and Four for violations of the 7 First Amendment based upon suppression ofprotected speech and retaliation for engaging in protected 8 speech, respectively, both of which are brought pursuant to 42 U.S.C. 1983; claims Seven, brought 9 pursuant to 42 U.S.C. 1983, and Eight, brought pursuant to 20 U.S.C. 1681 et seq. (Doc. #22, p. 23),3
10 for violations ofTitle IX for deprivation ofeducational benefits on the basis ofsex and for allowing peer
11 harassment on the basis of sex, respectively; and claims for punitive damages4• (Doc. #27, pp. 3-4).

12

For the claims at issue, Plaintiffsued Defendants Gregory, Anastasio, Floyd, Hausauer, Rende,

13 Robb, Ramilo, and Selby in their individual capacities and also sued Gregory in his official capacity. 14 (Doc. #22, pp. 16-19, 22-23; Doc. #27, p. 3). Plaintiff seeks compensatory and punitive damages 15 from the Defendants in their individual capacities and the Washoe County School District ("WCSD")

16 and injunctive relief from Defendant Gregory in his official capacity. (Doc. #22, pp. 16-27).

17 ///

18 ///

19 ///

20

21

3Although Plaintiffs Eighth Claim for Relief is brought pursuant to 20 U.S.C. 1681 er seq. (Doc. # 22, p. 23), rhe

court believes that Plaintiffs intention was to bring it pursuant to 42 U.S.C. 1983. Defendants, in their Motion to Dismiss,
22 refer to Plaintiffs Eighth Claim for Relief as being brought pursuant to 42 U.S.C. 1983 (Doc. #27, p.4), and Plaintiff, in his

opposition, refers to the claim as being brought under 42 U.S.C. 1983 (Doc. #28, p. 13). Thus, the court will assume that
23 Plaintiff meant ro bring his Eighth Claim for Relief pursuant ro 42 U.S.C. 1983 and proceed in its analysis based upon this

assumption.
24

4Plaintiff also brought claims, not at issue in this Motion to Dismiss, against Washoe County School District for
25 violations ofTitle IX for deprivation of educational benefits on the basis of sex (Fifth Claim for Relief) and for allowing peer
harassment on the basis of sex (Sixth Claim for Relief) (Doc. #22, pp. 20-21). Plaintiff also brought various state law rort
26 claims for Negligence (Ninth Claim for Relief), Negligent Training and Supervision (Tenth Claim for Relief), Intentional
Infliction of Emotional Distress (Eleventh Claim for Relief), and Negligent Infliction of Emotional Distress (Twelfth Claim
27 for Relief). (!d. at 24-27).

28

4

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 5 of 15

1

STANDARD FOR REVIEW

2

"A dismissal under Fed.R.Civ.P. 12(b)(6) is essentially a ruling on a question of law." North

3 Star Inter'l v. Ariz. Corp. Comm., 720 F.2d 578,580 (9'h Cir. 1983) (citation omitted). In considering

4 a motion to dismiss for failure to state a claim upon which relief may be granted, all material allegations

5 in the complaint are accepted as true and are to be construed in a light most favorable to the non-

6 moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9'h Cir. 1996) (citation omitted).

7 For a defendant-movant to succeed, it must appear to a certainty that a plaintiff will not be entitled

8 to relief under any set of facts that could be proven under the allegations of the complaint. Id. at 338.

9 A complaint may be dismissed as a matter of law for, "(1) lack of a cognizable legal theory or (2)

10 insufficient facts under a cognizable legal claim." Smilecare Dental Group v. Delta Dental Plan, 88 F.3d

11 780, 783 (9'h Cir. 1996) (quoting Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9'h Cir.

12 1984)).

13

DISCUSSION

14 I.

Are Plaintiffs First, Second, Seventh and Eighth Claims Brought Pursuant to § 1983

15

Subsumed by the Title IX claims?

16

The issue before the court is whether a§ 1983 action may be brought based upon an alleged

17 violation of Title IX (Seventh and Eighth Claims for Relief), and, even if those claims are subsumed

18 in Title IX, can a§ 1983 action based upon a violation of equal protection (First and Second Claims

19 for Relief) be maintained. This is a question of first impression in this court and in this circuit.

20

42 U.S.C. § 1983 provides a cause of action to a plaintiff when a person acting under color of

21 state law subjects that plaintiff to "the deprivation of any rights, privileges, or immunities secured by

22 the Constitution and laws [of the United States]." 42 U.S.C. § 1983 (1994). In 1980 the Supreme

23 Court broadly construed the "laws" language of the statute and held that§ 1983 "laws" encompassed

24 all statutory violations of federal law. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555

25 (1980) (specifically construing a Social Security Act violation). One year later, the court limited the

26 Thiboutot holding in Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1,

27 101 S.Ct. 2615,69 L.Ed.2d 435 (1981), when it held that "[w]hen the remedial devices provided in

28

5

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 6 of 15

1 a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent

2 to preclude the remedy of suits under§ 1983." Id. at 20, 101 S.Ct. 2626. The court has also held that

3 federal statutes can also preempt a§ 1983 constitutionally based claim which relies on the same factual

4 predicate as the statutory violation. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457,82 L.Ed.2d 746

5 (1984). "The burden to demonstrate that congress has expressly withdrawn the [§ 1983] remedy is

6 on the defendant." Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107, 110 S.Ct. 444,

7 449, 107 L.Ed.2d 420 (1989).

8

The Ninth Circuit has recognized the National Sea Clammers preemption doctrine in construing

9 a claim under the Education for All Handicapped Childrens Act of 1975, 20 U.S.C. § 1401 et seq. in

10 Department of Education, State of Hawaii v. Katherine D., 727 F.2d 809 (9'h Cir. 1984) ("The Supreme

11 Court has consistently indicated that the benefits of an action under 42 U.S.C. § 1983 are unavailable

12 'where the governing statute provides an exclusive remedy for violation of its terms.' (citations

13 omitted). Where congress has provided a comprehensive enforcement and remedial scheme in

14 enacting a regulatory statute, the Supreme Court has held, we must read the statute 'to supplant any

15 remedy that would otherwise be available under§ 1983.' (citation omitted).") Id. at 819.

16

The Ninth Circuit has also recognized that § 1983 actions were not available under other

17 federal statutes. See, for example, Harper v. Federal Land Bank of Spokane, 878 F.2d 1172 (9'h Cir.

18 1989) (Agriculture Credit Act of1987, 12 U.S.C. §§ 2001-22 79aa-14); Howardv. City of Burlingame,

19 937 F.2d 1376 (9'h Cir. 1991) (Federal Communications Act of 1934, 47 U.S.C. § 151 et seq.);

20 Associated General Contractors v. Smith, 74 F.3d 926 (9'h Cir. 1996) (Employment Retirement Income

21 Security Act, 29 U.S.C. §§ 1001-1461 (1988)); Dumas v. Kipp, 90 F.3d 386 (9'h Cir. 1996) (Higher

22 Education Act, 20 U.S.C. § 1078-81); Almond Hill Schoolv. US Dept. ofAgriculture, 768 F.2d 1030 (9'h

23 Cir. 1985) (Insecticide, Fugicide and Rodenticide Act, 7 U.S.C. § 136 et seq.); Dittman v. California,

24 191 F.3d 1020 (9'h Cir. 1999) (Privacy Act, 5 U.S.C. § 552a); Meyerson v. State ofAriz., 709 F.2d 1235

25 (9'h Cir. 1983) (Rehabilitation Act, 29 U.S.C. § 793); Boatowners & Tenants Ass'n v. Port of Seattle,

26 716 F.2d 669 (9'h Cir. 1983) (River and Harbor Improvements Act, 33 U.S.C. §§ 540-633).

27

28

6

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 7 of 15

I

The circuits that have looked at the enforceability of Title IX through§ 1983 are equally split.

2 The Third5, Seventh6, and Second7 Circuits have held that§ 1983 claims are preempted by Title IX,

3 while the Sixth8, Eighth9, and Tenth10 Circuits have taken a contrary position. The court believes that

4 the approach of the Third, Seventh and Second Circuits is persuasive.

5

Title IX contains a comprehensive administrative enforcement scheme which includes

6 administrative hearings and judicial review. See 34 C.P.R. § 100.1 et seq.

7

In addition to this administrative scheme, the Supreme Court in 1979 held that Title IX was

8 enforceable by an individual through an implied right of action. See Cannon v. University of Chicago,

9 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The court later held that an individual

10 exercising her implied right of action under Title IX has access to all appropriate remedies, including

11 equitable relief and damages. See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct.

12 1028, 117 L.Ed.2d 208 (1992).

13

The court in Franklin noted that after its decision in Cannon, Congress had on two occasions

14 amended Title IX, which actions "cannot be read except as validation of Cannon's holding." 503 U.S.

15 at 72. Regarding the first amendment in 1986, the court noted that "A subsection of the 1986 law

16 provides that in a suit against a state, 'remedies (including remedies both at law and in equity) are

17 available for such a violation to the same extent as such remedies are available for such a violation in

18 the suit against any public or private entity other than a state.' 42 U.S.C. § 2000d-7 (a) (2)." Id. at 72,

19 73. The court noted that in the second amendment to the statute in 1987 "Congress made no effort

20 to restrict the right of action recognized in Cannon and ratified in the 1986 Act or to alter the

21
'Pfeiffer v. Marion Center Area School Dist., 917 F.2d 779 (3'' Cir. 1990).
22
6Waid v. Merrill Area Public Schools, 91 F.3d 85 7 (7'" Cir. 1996); Boulahanis v. Board of Regents, 198 F.3d 633 (7'" 23 Cir. 1999) (following Waid).

24

'Bruneau v. South Kortright Central School Dist., 163 F.3d 749 (2"' Cir. 1998).

25

'Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6'" Cir. 1996).

26

'Crawford v. Davis, 109 F.3d 1281 (8'" Cir. 1997).

27

10Seamons v. Snow, 84 F.3d 1226 (10'" Cir. 1996).

28

7

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 8 of 15

I traditional presumption in favor of any appropriate relief for violation of a federal right. We cannot

2 say, therefore, that Congress has limited the remedies available to a complainant in a suit brought

3 under Title IX." Id. at 73. "The availability of a private judicial remedy is further evidence of a

4 congressional intent to supplant a§ 1983 remedy." Bruneau, supra, at 755 (citing Wright v. City of

5 Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 427, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987);

6 Marshal v. Switzer, 10 F.3d 925,930 (2"d Cir. 1993)).

7

Given the Supreme Court decisions and the intervening congressional action, we conclude that

8 Congress intended to create a private right of action in Title IX to secure enforcement of its provisions

9 and that this implied right of action is part of Title IX's enforcement scheme. When combining Title

10 IX's administrative remedies and private right of action, "the remedial devices provided in [Title IX]

11 are sufficiently comprehensive ... to demonstrate congressional intent to preclude the remedy of suits

12 under§ 1983." National Sea Clammers, supra, at 20, 101 S.Ct. 2626. Therefore, Plaintiffs Seventh

13 and Eighth Claims for Relief should be dismissed.

14

Plaintiff claims that even if the Seventh and Eighth Claims for Relief are subsumed in Title IX,

15 his First and Second Claims for Relief are constitutional claims based on a violation ofequal protection

16 and Title IX does not foreclose these claims under § 1983. It is acknowledged that the factual basis

17 for the claims under Title IX and the constitutional claims are the same.

18

In Katherine D., supra, the Ninth Circuit recognized that "The comprehensive nature of the

19 remedies laid out in the EAHCA evinces a congressional intent to preclude reliance on either a

20 statutory or a constitutional cause of action under§ 1983." 727 F.2d at 820, fn. 15. In Smith v.

21 Robinson, supra, the Supreme Court held that where Congress had crafted a comprehensive scheme

22 for enforcement of an act (The Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. in that

23 case) it would be inconsistent to allow a plaintiff to circumvent that scheme by pursuing an equal

24 protection claim under§ 1983 based upon the same set of facts.

25

Given our holding that § 1983 actions based on Title IX are subsumed by Title IX, it would be

26 inconsistent and contrary to the above authority to allow Plaintiff to pursue constitutional claims

27 through§ 1983 based on the identical facts as the Title IX claims. To hold otherwise would be to

28

8

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 9 of 15

1 create an exception to the Sea Clammers' doctrine that does not exist, Bruneau, supra, 757, 758, and

2 would allow Plaintiff to do indirectly what he cannot do directly.

3

Plaintiffs First, Second, Seventh and Eighth Claims brought pursuant to § 1983 should be

4 dismissed.

5 II. Violation of Plaintiff's First Amendment Rights

6

Plaintiffs Third and Fourth Claims for Relief allege Defendants violated his First Amendment

7 rights by censoring, chilling, and deterring him from exercising his right to freedom of speech and by

8 retaliating against him when he did exercise his rights. (Doc. #22, pp. 18-19).

9 Protected Speech

10

"Students in public schools do not shed their constitutional rights to freedom of speech or

11 expression at the schoolhouse gate." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503,

12 506,89 S. Ct. 733, 736,21 L. Ed. 2d 731 (1969). "[S]chool officials cannot suppress expressions of

13 feelings with which they do not wish to contend." Id. at 511, 89 S. Ct. at 739 (quoting Burnside v.

14 Byars, 363 F.2d 744, 749, (5'h Cir. 1966)). Thus, "[i]n the absence of a specific showing of

15 constitutionally valid reasons to regulate their speech, students are entitled to expression of their

16 views." Id. Students' speech may be regulated where defendants show that engaging in forbidden

17 conduct would "materially and substantially interfere with the requirements of appropriate discipline

18 in the operation of the school." Id. at 509, 89 S. Ct. at 738 (quoting Burnside, 363 F.2d at 744).

19

Defendants argue that they did not violate Plaintiffs First Amendment rights because his

20 speech was disruptive and as such was subject to being suppressed and regulated by Defendants.

21

In Chandler v. Mclnnville School Dist., 978 F.2d 524, 529 (9'h Cir. 1992), the court recognized

22 three distinct areas ofstudent's speech based on Supreme Court precedent: " (1) vulgar, lewd, obscene,

23 and plainly offensive speech, (2) school sponsored speech, and (3) speech that falls into neither of these

24 categories." The speech involved in the present case falls into the third category. As such "To

25 suppress speech in this category, school officials must justify their decision by showing 'facts which

26 might reasonably have lead school authorities to forecast substantial disruption of or material

27 interference with school activities."' Id. at 529 (citing Tinker, supra, 393 U.S. at 514, 89 S.Ct. at 740).

28

9

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 10 of 15

1

At this stage of the proceeding, we cannot say, as a matter oflaw, that Plaintiffs speech caused

2 a "substantial disruption of or material interference with school activities", or that Defendants might

3 reasonably have believed such disruption or interference would likely occur. Although there are

4 instances of alleged harassment set forth in the First Amended Complaint, it cannot be said, as matter

5 of law at this stage of the proceedings, that these instances substantially or materially interfered with

6 school activities. Thus, we cannot say at the motion to dismiss stage, that Plaintiff has failed to state

7 a claim for relief in his third claim.

8 Retaliation

9

In examining a First Amendment retaliation claim, courts engage in yet another three part

10 inquiry. For the first two prongs of the inquiry, plaintiff must demonstrate: (1) the speech at issue was

11 constitutionally protected; and (2) the speech was a substantial or motivating factor in the adverse

12 action. Moran v. State of Washington, 147 F.3d 839, 846 (9'h Cir. 1998); Brewster v. Bd. of Educ., 149

13 F.3d 971, 978 (9'h Cir. 1998). If plaintiff satisfies this burden, the burden shifts to the defendants to

14 demonstrate they would have taken the same actions against plaintiff, even in the absence of his

15 protected conduct. Id.

16

In light of the previous discussion, Plaintiff satisfied element one by alleging that his speech was

17 constitutionally protected. (Doc. #22, p. 7-9, 11). Thus, we will turn our attention to element two.

18

Plaintiff alleges several actions and/or inactions by Defendants that warrant the inference that

19 the actions and/or inactions were retaliatory in nature. See Pareto v. FDIC, 139 F.3d 696, 699 (9'h Cir.

20 1998) (citation omitted) (stating " [c] onclusory allegations of law and unwarranted inferences are not

21 sufficient to defeat a motion to dismiss"). He alleges that after his appearance on "Set Free" where he

22 participated in a discussion about gay high school students and their experiences, the harassment began

23 at Galena and, ultimately, resulted in his transfer to Washoe, an alternative high school. (Doc. #22,

24 p. 5). Plaintiff also alleges, rather than disciplining the harassers, Defendants treated him as the

25 problem (Doc. #22, p. 3) and told him numerous times to keep his sexuality to himself. (Id. at 6-9).

26 Plaintiff further alleges, his first transfer from Galena to Washoe was conditioned on the fact that he

27 keep his sexuality to himself. (Id. at 8). In an effort to comply with this request, he removed buttons,

28

10

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 11 of 15

1 pertaining to his sexuality, from his backpack. (!d. at 6-9). Moreover, Defendants transferred Plaintiff,

2 a gifted and talented student, to Washoe, and alternative education program (Doc. #28, p. 4).

3 Furthermore, when he asked for a transfer from Washoe because oflack of educational opportunities,

4 Defendant Floyd told him the transfer was not possible because he was openly gay and a traditional

5 high school was not appropriate, but was eventually transferred to Wooster. (Doc. 22, p. 9). And

6 finally, after Plaintiff continued to express his sexuality at Wooster, he was denied a transfer back to

7 Washoe, and instead was transferred to an adult education program where he could not receive a

8 high school diploma because he was no longer enrolled in a public high school. (Doc. #22, p. 11).

9

Thus, at this stage of the proceedings, Plaintiff has made sufficient allegations, that his

10 constitutionally protected speech was a substantial motivating factor in adverse action directed at him.

11 Therefore, this court cannot say as a matter of law that Plaintiff failed to state a claim for retaliation

12 for exercising his First Amendment rights.

13 Qualified Immunity

14

Defendants assert they are entitled to qualified immunity because there was no clearly

15 established right for a gay student to speak about or express his sexual preference in a school setting

16 (Doc. #27, p.19).

17

Government officials enjoy qualified immunity from civil damages unless their conduct violates

18 "clearly established statutory or constitutional rights ofwhich a reasonable person would have known."

19 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Romero v. Kitsap

20 County, 931 F.2d 624, 627 (9'h Cir. 1991). "A public official is not entitled to qualified immunity when

21 the contours of the allegedly violated right were sufficiently clear that a reasonable official would

22 understand that what he [was] doing violate[d] that right." Osolinski v. Kane, 92 F.3d 934, 936 (9'h

23 Cir. 1996) (alterations in original) (citations omitted). Determining whether a public official is

24 entitled to qualified immunity "requires a two-part inquiry: (1) Was the law governing the state

25 official's conduct clearly established? (2) Under that law could a reasonable state official have believed

26 hisconductwaslawful?" Browningv. Vemon,44F.3d818,822 (9'hCir.1995) (citingActUp!/Portland

27 v. Bagley, 988 F.2d 868,871-72 (9d' Cir. 1993)).

28

II

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 12 of 15

1

Defendants contend that the established constitutional right must be narrowly particularized,

2 rather than generalized. They assert that without a case which specifically concerns sexual orientation

3 speech by students there can be no clearly established law prior to 1997. The court disagrees.

4

In Tinker, supra, the Supreme Court clearly established that students in public schools have the

5 right to freedom of speech and expression. Tinker, 393 U.S. at 506, 89 S.Ct. at 736. This is a broad

6 right that would encompass the right of a high school student to express his sexuality. In Chandler,

7 supra, the Ninth Circuit discussed in detail categories of student's speech. The court set forth two

8 specific categories and a third category of "speech that falls into neither of these categories". 978 F.2d

9 at 529. This category clearly encompasses various types of speech, including the type involved with

10 the Plaintiff. To require Plaintiff to particularize and prove the clearly established right that

11 Defendants suggest would circumvent the right established by the Supreme Court. See Seamons v.

12 Snow, 84 F.3d 1226, 1237 (lO'h Cir. 1996) (quoting Hilliard v. City and County of Denver, 930 F.2d

13 1516, 1518 (10'h Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 656, 116 L.Ed.2d 748 (1991) (stating

14 "[t] he plaintiff need not show the specific action at issue has been previously held unlawful, he need

15 only show that the alleged unlawfulness was apparent in light of preexisting law"). If Defendants'

16 argument were to be accepted it would allow future Defendants to abuse the "clearly established right"

17 standard so that each time a new fact situation arose they would be entitled to qualified immunity.

18

Because the law was clearly established and the facts concerning what the Defendants knew

19 or did are in dispute, "it is clear that these are questions offact for the jury to determine." Sinaloa Lake

20 Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1099 (9'h Cir. 1995); see also Katz v. United States,

21 194 F.3d 962, 969 (9'h Cir. 1999) (holding that if disputed facts prevent the court from deciding

22 whether excessive force was used as a matter oflaw, then the court cannot decide whether officials are

23 entitled to qualified immunity for the use of that force as a matter of law either).

24

The Defendants are not entitled to qualified immunity as a matter of law.

25 Ill

26 Ill

27 Ill

28

12

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 13 of 15

1

Plaintiff's Claims for Punitive Damages

2

In view of the court's rulings above, the punitive damages claims at issue in Defendants' motion

3 are the claims against the individual Defendants in the Third and Fourth Claims for Relief and the

4 punitive damages claim against the Washoe County School District in the Fifth and Sixth Claims for

5 Relief.

6

In the Third and Fourth Claims for Relief Plaintiff sues Defendant Gregory in his official

7 capacity and Defendants Anastasio, Gregory, Hausauer, Rende, Floyd, Robb, Ramilo and Selby in their

8 individual capacities (Robb is not a Defendant in the Third Claim for Relief). Punitive damages are

9 available against government officials in their individual capacities under§ 1983, but not in their 10 official capacities. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Ruvalcaba v.

11 City of Los Angeles, 167 F.3d 514 (9'h Cir. 1999). Therefore, the Third and Fourth Claims for Relief

12 state claims for punitive damages against all Defendants named in their individual capacity, but not

13 Defendant Gregory in his official capacity.

14

Whether punitive damages are available under Title IX is not as clear. Recent decisions of the

15 Supreme Court, however, give some guidance.

16

In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208

17 (1992), the court concluded that Title IX authorized a plaintiff to recover money damages from a

18 school district.

19

More recently, the court held that in a case of alleged teacher-student sexual harassment "that

20 a damages remedy will not lie under Title IX unless an official who at a minimum has authority to

21 address the alleged discrimination and to institute corrective measures on the recipient's behalf has

22 actual knowledge of discrimination in the recipient's programs and fails to adequately respond. We

23 think, moreover, that the response must amount to deliberate indifference to discrimination." Gebser

24 v. Lago Vista Independent School Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 1999 (1998). In that case

25 the plaintiff sought both compensatory and punitive damages. Id. at 279.

26

The court followed Gebser in Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct.

27 1661 (1999), and allowed a claim for compensatory and punitive damages to go forward and concluded

28

13

Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 14 of 15

1 "that recipients of federal funding may be liable for 'subject[ing]' their students to discrimination where

2 the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the

3 harasser is under the school's disciplinary authority." Id. at 646-47.

4

In a recent decision, the Ninth Circuit adopted the framework set out in Davis and set forth

5 four requirements for imposition of school district liability under Title IX for student-student sexual

6 harassment: (1) the school district "must exercise substantial control over both the harasser and the

7 context in which the known harassment occurs", (2) the plaintiff must suffer "sexual harassment ...

8 that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access

9 to the educational opportunities or benefits provided by the school", (3) the school district must have

10 "actual knowledge of the harassment", and (4) the school district's "deliberate indifference subjects

11 its students to harassment". Reese v. Jefferson School District No. 14], 203 F.3d 736, 739 (9th Cir. 2000)

12 (quoting Davis, 119 S.Ct. 1672, 1675).

13

Deliberate indifference is defined in this circuit as "the conscious or reckless disregard of the

14 consequences of ones acts or omissions". See 9th Cir. Civ. Jury Instr. 11.3.5 (1997) (citing Redman v.

15 County ofSan Diego, 942F.2d 1435, 1442 (9th Cir. 1991), cert. denied, 502 U.S. 1074 (1992) ). Reckless

16 or callous disregard of or indifference to the rights of others is sufficient to sustain an award of punitive

17 damages. See Smith v. Wade, supra.

18

Given the requirement of actual knowledge and deliberate indifference to establish liability

19 under Title IX, we believe, depending on the facts of a particular case, a punitive damages instruction

20 may be warranted for violation of Title IX, and, therefore, we cannot say that, as a matter of law,

21 Plaintiff's claims for punitive damages in his Fifth and Sixth Claims for Relief should be dismissed.

22

CONCLUSION

23

IT IS HEREBY ORDERED:

24

Defendants' Motion to Dismiss Plaintiff's First, Second, Seventh and Eighth Claims for Relief

25 is GRANTED.

26

Defendants' Motion to Dismiss Plaintiff's Third and Fourth Claims for Relief is DENIED.

27

28

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Case 3:00-cv-00050-RAM-RAM Document 54-2629653 Filed 02/28/01 Page 15 of 15

1

Defendants' Motion to Dismiss the punitive damages claims against Defendant Gregory in his

2 official capacity in the Third and Fourth Claims for Relief is GRANTED.

3

Defendants' Motion to Dismiss Plaintiffs claims for punitive damages against the Defendants

4 in their individual capacities in the Third and Fourth Claims for Relief and his claims for punitive

5 damages against the Washoe County School District in the Fifth and Sixth Claims for Relief is

6 DENIED.

7 8 9

DATED: February 28, 2001.

O~~E)ODGE

10

11

12

13

14

15

16

17

18

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 Case 3:00-cv-00050-RAM-RAM Document 61-2639331 Filed 05/22/01 Page 1 of 4

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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

7

8 DEREK R. HENKLE,

)

)

9

Plaintiff,

)

)

10

vs.

j

11 ROSS GREGORY, in his official and

)

individual capacity, DENISE HAUSAUER, )

12 LORETIA RENDE, JOE ANASTASIO, )

ROBERT FLOYD, SERENA ROBB,

)

13 ARNEL RAMILO, and GLEN SELBY, in )

their individual capacities; and the

)

14 WASHOECOUNTYSCHOOL

)

DISTRICT, a political subdivision of the )

15 State of Nevada,

)

)

16

)

Defendants.

)

17 ______________________)

CV-N-00-050-RAM

ORDER

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U.S. DIS'TRICT COURT DEPUTY

18

Plaintiff has filed a Motion for Reconsideration, or Alternatively, Leave to Amend; and for

19 Certification Pursuant to 28 U.S.C. § 1292(b) (Doc. #57). Defendants have opposed the Motion

20 (Doc. #59) and Plaintiff has replied (Doc. #60).

21

Reconsideration is appropriate where (1) the court is presented with newly discovered

22 evidence; (2) the court committed clear error; (3) the initial decision was manifestly unjust; (4) there

23 has been an intervening change in controlling law; or (5) there are other highly unusual circumstances

24 warranting reconsideration. See School Dist. No. 1] v. AC and S, Inc., 5 F.3d 1255, 1263 (9'h Cir. 1993).

25 A. MOTION FOR RECONSIDERATION

26

Plaintiffrequests reconsideration of the court's ruling dismissing the First Claim for Reliefwhich

27 is a § 1983 claim for Equal Protection violations based on sexual orientation discrimination. Plaintiff

28 claims that this claim cannot properly subsumed under Middlesex Co. Sewerage Auth. v. National Sea

Case 3:00-cv-00050-RAM-RAM Document 61-2639331 Filed 05/22/01 Page 2 of 4

1 Clammers, 453 U.S. 1 (1981) and its progeny because claims based solely on sexual orientation are not

2 actionable under Title IX. On further review of this matter, and in view of a recent decision of the

3 Ninth Circuit Court of Appeals, the court believes that Plaintiff is correct and his Motion for

4 Reconsideration should be granted and the First Claim for Relief reinstated.

5

Title IX provides that: "[n]o person in the United States shall, on the basis of sex, be excluded

6 from participation in, be denied the benefits of, or be subjected to discrimination under" federally

7 funded educational programs or activities. 20 U.S.C. § 1681 (a) (emphasis added). Other courts have

8 recognized that Title IX only prohibits discrimination based on sex and not other forms of

9 discrimination. See Montgomery v. Independent Sch. Dist. No. 709, 109 F.Supp.2d 1081, 1089-90

10 (D.Minn. 2000). Given this interpretation, a claim for discrimination based solely on sexual

11 orientation should not be precluded by the Sea Clammers doctrine because the application of Sea

12 Clammers is appropriate only when the statute (Title IX in this case) provides a comprehensive remedy.

13

The Supreme Court has looked to Title VII case law as an aid in interpreting Title IX. See

14 Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)

15 (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).

16 Utilizing that analogy, the Ninth Circuit has recently held that although Title VII prohibits

17 discrimination on the basis of "sex" it does not provide a remedy for discrimination based on sexual

18 orientation. Rene v. MOM Grand Hotel, Inc., 243 F.3d 1206, 1209 (9'h Cir. 2001). The rule should

19 be no different for Title IX.

20

Based on the above, the court concludes that it erred in applying the Sea Clammers doctrine

21 to, and dismissing, Plaintiffs First Claim for Relief.

22 B. MOTION FOR CERTIFICATION OF AN INTERLOCUTORY APPEAL

23

Plaintiffalso seeks certification of an interlocutory appeal pursuant to 28 U.S. C. 1292 (b). This

24 statute is an exception to the general rule that an appellate court should not review a district court's

25 ruling until after final judgment, and exists for those exceptional circumstances when considerations

26 of judicial economy and fairness demand interlocutory review of an order. Coopers & Lybrand v.

27

28

2

Case 3:00-cv-00050-RAM-RAM Document 61-2639331 Filed 05/22/01 Page 3 of 4

1 Livesay, 437 U.S. 463, 474-75, 98 S.Ct. 2454, 2460-61, 57 L.Ed.2d 351 (1978); Fukuda v. County of

2 Los Angeles, 630 F.Supp. 228, 229 (C.D. Cal. 1986).

3

Section 1292(b) identifies three factors that must be present in order for the court to certifY

4 an appeal. First, the issue must involve a controlling issue of law. The issue must be such that

5 "resolution ... on appeal could materially affect the outcome of the litigation in the district court."

6 In Re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9'h Cir. 1982); Shurance v. Planning Control Int'l.,

7 Inc., 839 F.2d 1347, 1347-48 (9'h Cir. 1988).

8

Second, there must be a substantial ground for difference of opinion on the issue. Kern-Tulare

9 Water Dist. v. Bakersfield, 634 F.Supp. 656 (E.D. Cal. 1986).

10

Third, the interlocutory appeal must be likely to materially speed the termination of the

11 litigation. This factor is linked to the first factor in that the court should consider the effect of a

12 reversal on the management of the case. Additionally, because the statute should only be used in

13 exceptional circumstances the court should consider whether litigation flowing from the order

14 permitting an interlocutory appeal would be "protracted and expensive." In Re CementAntritrust Litig.,

15 673 F.2d at 1026. If the interlocutory appeal would actually delay the conclusion of litigation, the

16 court should not certifY the appeal. See Shurance, 839 F.2d at 1348 (refusing to hear certified appeal

17 in part because decision of Ninth Circuit might come after scheduled trial date).

18

Although the claims dismissed by the court limit the scope of Plaintiffs case, the order disposes

19 of only three claims for relief, not the entire case. As the resolution of these claims on appeal would

20 have some impact on the case, but not be dispositive, the proposed interlocutory appeal does not

21 involve a controlling issue of law.

22

If the court certified an interlocutory appeal and stayed the proceedings, the trial in this case

23 would be delayed many months while the court waited for a ruling. Even if the Ninth Circuit ruled

24 in favor of the Plaintiff, this matter would still have to be tried in a substantially similar fashion. If the

25 court did not stay the proceedings, there is a good possibility that the Ninth Circuit would not decide

26 the appeal until after the trial was set to commence, which would also delay termination of this case.

27

28

3

Case 3:00-cv-00050-RAM-RAM Document 61-2639331 Filed 05/22/01 Page 4 of 4

1 Additionally, the interlocutory appeal would be protracted and expensive and not materially speed the

2 termination of this litigation, however it was decided.

3

Considering all of the factors, Plaintiff has failed to demonstrate exceptional circumstances

4 warranting interlocutory review of the court's February 28, 2001, order. While there is substantial

5 ground for difference of opinion based on the split of authority cited in the order itself, the issue is not

6 a controlling issue, and certification of an appeal will not materially speed the termination of this

7 litigation.

8 C. CONCLUSION

9

IT IS HEREBY ORDERED that Plaintiff's Motion for Reconsideration (Doc. #57) is

10 GRANTED and Plaintiffs First Claim for Relief is reinstated.

11

IT IS HEREBY FURTHER ORDERED that the Motion for Certification of Interlocutory

12 Appeal (Doc. #57) is DENIED.

13

IT IS HEREBY FURTHER ORDERED that Plaintiffs Request for a Ruling on Defendants'

14 Qualified Immunity Defense is DENIED as moot as Plaintiff has withdrawn that request.

15 16 17

DATED: May 22, 2001.

~~IE JUDGE

18

19

20

21

22

23

24

25

26

27

28

4

 
 ~

Case 3:00-cv-00050-RAM-RAM Document 86-2671180 Filed 09/10/02 Page 1 of 2

ORIGINAL

1 !T~ ._,~·y ,_.:.,·· ' .. vA.'i.iA

2

~EC""IVCD

3 C. Robert Cox, Esq., #1780 Michael E. Malloy, Esq. #617

4 Christopher d. Jaime, Esq., #4640

Rick R. Hsu, Esq., #5374
5 WALTHER, KEY, MAUPIN, OATS,

6

COX & LeGOY 3500 Lakeside Court, Ste. #200

7

P.O. Box 30000 Reno, Nevada 89520

8 (775) 827-2000

'1 SEP-6
"JK. U.S. DISTRICT COUP

9 ~torneys for Defe dants

ISTR!t

20~2- 10 EI\ITERED t ':::· :, "'ciJ
11 r SEP I I l

UNITED STATES DISTRICT COURT

12 u::

L!K-,-u--.,s·.-r -~-u ---~ --~-c-o~ u:"T

13

I .

L-----

' 14

----···--- ----··· ;-.' . ··-~l :·-::-, .· i

15 DEREK R. HENKLE,

16

Plaintiff,

17 V.

DISTRICT OF NEVADA
* * *
KAl1\
Case No. CV-N-00-0050 tlWH I PHI[)
STIPULATION FOR DISMISSAL WITHOUT PREJUDICE and ORDER

18 LORETTA RENDE, et al,

19 20

_________D_e_f_e_n_da_n_t_s_. ____!

21

It is hereby stipulated, by and between Derek R. Henkle,

22 Plaintiff, and Loretta Rende, Defendant, through their undersigned

23 counsel that Plaintiff Henkle's Complaint against Loretta Rende
24 I I I 25 I I I 26

27

28

1

Case 3:00-cv-00050-RAM-RAM Document 86-2671180 Filed 09/10/02 Page 2 of 2

-·
1

2

3 should be dismissed without prejudice with Henkle and Rende to bear

4 their own respective costs, expenses and attorneys' fees incurred

5 in this litigation. The basis for this Stipulation is more

6 specifically set forth in the previously signed Settlement

7 Agreement and Mutual Release Of All Claims.

8

of~ Dated this _L day

2002.

9

10

11 12

DYER, LAWRENCE, PENROSE,
By~:N

13

MiChaei:I)yer;Esq.

14

2805 N. Mountain St.

Carson City, NV 89703

15

(775) 885-1896

16

17

18

Attorneys for Defendant Loretta Rende

19

WALTHER, KEY, MAUPIN, OATS, COX & LeGOY
By~~ :RObert Cox, Esq:~
Michael E. Malloy, Esq. Christopher D. Jaime, Esq. Rick R. Hsu, Esq. 3500 Lakeside Court, #200 Reno, NV 89509 (775) 827-2000
Attorneys for Defendants

20

21 B~yNY ~. -& ~~ kS :SLL-P

22

Peter Obstler, Esq.

ITH~

23

Embarcadero Center West 275 Battery Street

~~I~

24

San Francisco, CA 94111-3305 (415) 984-8700

Dated: "'--\~~:> -'l:::.~

25

Attorneys for Plaintiff

26

27

28
2

 
 Case 3:00-cv-00050-RAM-RAM Document 87-2638276 Filed 09/13/02 Page 1 of 2

,.\ ;,)~;(.:>· :·~~' ,_..

',..,l_,

RECEIVED

1

C. Robert Cox, Esq., #1780

Michael E. Malloy, Esq. #617

2

WALTHER, KEY, MAUPIN, OATS,

i I
I SEPI22002

COX& LeGOY

3

3500 Lakeside Court, #200

::LEAK, U.S. DISTRICT COUR

4

P.O. Box 30000

Reno, NV 89520

5 (775) 827-2000

6

Attorneys for the Washoe County

7

School District and\all Defendants except Loretta Rende

8 ' \

ITED STATES DISTRICT COURT DISTRICT OF NEVADA

15
16
17
18
19
20
21
22
23
24
25
26
WALTHER, KEY MAUPIN, OATS, COX
& LEGOY
ATTORNEYS AT LAW P. O, BOX 30000
RENO, NEVADA 89520 (775) 827-2000

Plaintiff, vs.

No. CV-N-00-0050-RAM
STIPULATION FOR DISMISSAL WITH PREJUDICE; ORDER

ROSS GREGORY, et al.,

Defendants.
--------------------~'
The parties in this action, with the exception of Defendant Loretta Rende, through

their respective counsel of record, hereby AGREE and STIPULATE that this action has been settled, and in accordance with the terms of the Settlement Agreement dated August 28, 2002 that the action is DISMISSED WITH PREJUDICE as to all Defendants except

CDJ\WCSD\HENKLE\STIPDISMISS
1

\-;:n;!

Case 3:00-cv-00050-RAM-RAM Document 87-2638276 Filed 09/13/02 Page 2 of 2

1
2
3 4 5
6 7 8 9 10 11
12 13 14
15 16
17 18 19
20
21
22 23 24
25 26
WALTHER, KEY MAUPIN, OATS, COX
8: LEGOY
ATTORNEYS AT I.AW P. O. BOX 30000
RENO. NEVADA 89520 (775) 827-2000

Defendant Loretta Rende, the Plaintiff and all Defendants hereby so dismissed to each bear their own attorneys' fees and costs incurred, and that the Court may enter its Order consistent herewith.

~ Dated: September

2002

Lz-. Dated: September

~
2002

O'MELVENY & MYERS LLP
By:?~~~ Peter Obstler, Esq. Attorneys for Plaintiff Derek Henkle
WALTHER, KEY, MAUPIN, OATS COX& LeGOY

Michael E. Malloy, Esq. Attorneys for the Washoe Co nty School District and all Defendants except Loretta Rende
IT IS SO ORDERED:

UNITED STATES MAGISTRATE JUDGE
Dated:_ _<\_-_\-'---~=--CJ_'d._ __

COJ\WCSO\HENKLEISTIPOISMISS
2

 
 Case 3:00-cv-00050-RAM-RAM Document 88-2626166 Filed 01/17/03 Page 1 of 3

y~ '·

ORIGINAL

;)iSTRICT U' i\i~\1·· . RE(,Ci\I"D

1 C. Robert Cox, Esq., #1780

Michael E. Malloy, Esq. #617

2 WALTHER, KEY, MAUPIN, OATS,

COX& LeGOY

3

3500 Lakeside Court, #200

4

P.O. Box 30000

Reno, NV 89520

5 (775) 827-2000

JAN I 5 2J03
. _j
CLER,;., ·". .. . ;'""T COURT

6 Attorneys for the Washoe County

7

I ····· -:l School District and all
except Loretta Rende

efenrtlol.\E.S~n·itrpsc,:,-,c_..,:.-l ·o•O·&vf·

·. ·-uv.. •
''EVADA SEC1VED

8 9

CLE;RI/~~ D~~~~~~~~UAf

10

oc:Pur:

11

UNITED STATES DISTRICT COURT

12
13
DEREK R. HENKLE,
14

DISTRICT OF NEVADA No. CV-N-00-0050-RAM

15

Plaintiff,

16 vs.

17 ROSS GREGORY, et al.,

STIPULATION FOR DISMISSAL OF DEFENDANT LORETTA RENDE
WITH PREJUDICE: ORDER

18

Defendants.

19 ------------------------'

20

It is hereby agreed and stipulated by the parties to this action through their

21

respective counsel of record that Defendant LORETTA RENDE ("RENDE") has completed

22

the training required pursuant to the underlying Settlement Agreement, as described in the

23

letter certifying her completion thereof, attached as Exhibit "A" to the Stipulation, and that

24

25

CDJIWCSD\HENKLE\STIPDISMISSRENDE

26

1

WALTHER, KEY MAUPIN, OATS, COX
& LEGOY
ATTORNEYS AT LAW
p, O. BOX 30000
RENO. NEVADA 69520
( 775) 827. zooo

Case 3:00-cv-00050-RAM-RAM Document 88-2626166 Filed 01/17/03 Page 2 of 3

1 2
3 4 5
6
7 8 9 10 11 12 13
14
15 16
17 18 19
20
21 22
23
24 25 26
WALTHER, KEY MAUPIN, OATS, COX
& LEGOY
ATTORNEYS AT LAW p, 0, BOX 30000
RENO. NEVADA 89520 (775) 827·2000

therefore this case shall be DISMISSED WITH PREJUDICE as to Defendant RENDE, each party to bear their own attorney's fees and associated costs.

Dated: December J.J!,'2002

DYER, LAWRENCE, PENROSE, FLAHERTY & DONALDSON

.LL. Dated: December

f-.-_ 2002

WALTHER, KEY, MAUPIN, OATS COX& LeGOY

~..... 'j
Dated: QeeeFnoer _j_, 200J3

Michael E. Malloy, Esq. Attorneys for the Washoe County School District and all Defendants except Defendant RENDE
O'MELVENY & MYERS LLP
B~~ o-€1:&.-, Peter Obstler, Esq. Attorneys for Plaintiff Derek Henkle
IT IS SO ORDERED:

CDJIWCSD\HENKLE\STIPDISMISSRENDE

UNITED STATESJ~:Ife~~p JUDGE Y\t.~SV..."V.
Dated:._ _\_-_\_~_-_C_:3._ _ __
2

Case 3:00-cv-00050-RAM-RAM Document 88-2626166 Filed 01/17/03 Page 3 of 3

Wasnoe County School Uistrict
425 East Ninth Street • P.O. Box 30425 Reno, Nevada 89520-3425
Phone (775) 348-0200 • Fax (775) 348-0304

Nancy Itolhnger, President Marilyn Fendelander

Board of Trustees

jonnie Pullman, Vice President

Anne Loring

Lezlie Porter

james L. Hager, Ph.D., Superintendent

Dan Carne, Clt:rk jody Ruggiero

December 6, 2002

To Whom it may concern:
This will certify on behalf of the Washoe County School District that Loretta Rende attended and completed the District's Harassment/Sexual Harassment Awareness Prevention Orientation on September 25, 2002.

!:aura Dancer Assistant Superintendent, Human Resources

 
 Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 1 of 10
United States District Court District of Nevada (Reno)
CIVIL DOCKET FOR CASE #: 3:00−cv−00050−RAM−RAM

DEREK HENKLE VS ROSS GREGORY, ET AL Assigned to: Magistrate Judge Robert A McQuaid, Jr Referred to: Magistrate Judge Robert A McQuaid, Jr Cause: 42:1983
Plaintiff

Date Filed: 01/28/2000 Date Terminated: 09/13/2002 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Derek Henkle

represented by Doni Gewirtzman Lambda Legal Defense (LA) 6030 Wilshire Boulevard Suite 200 Los Angeles, CA 90036− 323−937−2728 Fax: 323−937−0601 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon W. Davidson Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Boulevard Los Angeles, CA 90010 213−382−7600 Email: jdavidson@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent R. Robison Robison, Belaustegui, Sharp &Low 71 Washington Street Reno, NV 89503 (775) 329−3151 Fax: (775) 329−7169 Email: krobison@rbslattys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luann L. Simmons O'Melveny &Myers 400 South Hope Street Los Angeles, CA 90091 (310) 553−6700 Fax: LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael F. Tubach OMelveny &Myers LLP 275 Battery Street San Francisco, CA 94111 415−984−8700 Fax: 415−984−8701 Email: mtubach@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Obstler O'Melveny &Myers LLP 275 Battery Street

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 2 of 10
San Francisco, CA 94111 415−984−8825 Fax: 415−984−8701 Email: pobstler@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney E. Sumpter Rodney E. Sumpter 139 Vassar Street Reno, NV 89502 775−323−4934 Fax: 775−323−6114 Email: resrnolaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Joe Anastasio
Defendant Robert Floyd

represented by C. R. Cox Maupin, Cox &LeGoy PO Box 30000 Reno, NV 89520 775−827−2000 Fax: 775−827−2185 Email: crcox@mclrenolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher D. Jaime Maupin, Cox &LeGoy PO Box 30000 Reno, NV 89520 775−827−2000 Fax: 775−827−2185 Email: cjaime@mclrenolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E. Malloy Maupin, Cox &LeGoy PO Box 30000 Reno, NV 89520 775−827−2000 Fax: 775−827−2185 Email: mmalloy@mclrenolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rick R. Hsu Walther Key Maupin Oats Cox &Legoy PO Box 30000 Reno, NV 89520 775−827−2000 Fax: 775−827−2185 Email: rhsu@mclrenolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. R. Cox (See above for address)

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 3 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Jaime (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Malloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick R. Hsu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Ross Gregory

represented by C. R. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Jaime (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Malloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick R. Hsu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Denise Hausauer

represented by C. R. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Jaime (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Malloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick R. Hsu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Arnel Ramilo

represented by C. R. Cox (See above for address)

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 4 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Jaime (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Malloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick R. Hsu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Loretta Rende

represented by C. R. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Jaime (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Malloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick R. Hsu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Serena Robb

represented by C. R. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Jaime (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Malloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick R. Hsu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Glen Selby

represented by C. R. Cox (See above for address)

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 5 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Jaime (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Malloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick R. Hsu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Washoe County School District

represented by C. R. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Jaime (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Malloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick R. Hsu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Paul Edgington
Intervenor Defendant Shane Tacket

represented by John Aberasturi . P.O. Box 3559 Reno, NV 89505 (775) 786−3930 Fax: (775) 786−4160 Email: jaberasturi@etsreno.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Aberasturi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 6 of 10

01/28/2000 01/28/2000 01/28/2000 01/31/2000
03/13/2000 03/13/2000 03/16/2000 03/16/2000 05/16/2000 05/16/2000 05/16/2000 05/16/2000
05/16/2000 05/16/2000 05/16/2000 05/16/2000 05/16/2000
05/16/2000
05/16/2000 05/19/2000 05/19/2000 05/22/2000

0 MISCELLANEOUS DOCUMENT ORIGINAL HARD COPY DOCKET SHEET (Entered: 03/13/2003)
1 COMPLAINT obo P (Entered: 02/10/2003)
SUMMONS ISSUED no text (Entered: 02/10/2003)
2 CERTIFICATE OF INTERESTED PARTIES obo P (Entered: 02/10/2003)
MISCELLANEOUS DOCUMENT verified petition frm Done Gewirtzman and Jon W. Davidson w/o designation of local cnsl. (placed on left hand side of fldr (Entered: 02/10/2003)
3 VERIFIED PETITION FOR PERMISSION TO PRACTICE PRO HAC VICE approved as to Doni Gewirtzman, out of state cnsl for P. (Entered: 02/10/2003)
4 VERIFIED PETITION FOR PERMISSION TO PRACTICE PRO HAC VICE approved as to Jon W. Davidson, out of state cnsl for P (Entered: 02/10/2003)
5 DESIGNATION OF LOCAL COUNSEL approved as to Rodney E. Sumpter, Loc cnsl for out of state cnsl Doni Gewirtzman, cnsl for P (Entered: 02/10/2003)
6 DESIGNATION OF LOCAL COUNSEL approved as to Rodney E. Sumpter, loc cnsl for out of state cnsl Jon Davidson, obo P. (Entered: 02/10/2003)
8 SUMMONS RETURNED EXECUTED as to Denise Hausauer prnsly srvd on 5/9/00 (Entered: 02/10/2003)
9 SUMMONS RETURNED EXECUTED as to Loretta Rende svd prnsly on 5/9/00 (Entered: 02/10/2003)
12 SUMMONS RETURNED EXECUTED as to Arnel ramilo srvd prnsly on 5/11/00 (Entered: 02/10/2003)
14 VERIFIED PETITION FOR PERMISSION TO PRACTICE PRO HAC VICE approvas as to out of state cnsl Michael Tubach, cnsl for P. Receipt #9816 (Entered: 02/10/2003)
15 DESIGNATION OF LOCAL COUNSEL as to Rodney Sumpter, loc cnsl for out of state cnsl Michael Tubach, cnsl for P (Entered: 02/10/2003)
7 SUMMONS RETURNED EXECUTED as to Ross Gregory srvd prsnly on 5/9/00 (Entered: 02/10/2003)
10 SUMMONS RETURNED EXECUTED as to Serena Robb srvd prnly on 5/10/00 (Entered: 02/10/2003)
11 SUMMONS RETURNED EXECUTED as to Glen Selby srvd prnsly on 5/9/00 (Entered: 02/10/2003)
13 NOTICE (OTHER) of assoc of csnl of Peter Obstler, Michael F. Tubach and Luann L. Simmons of the law firm O'Melveny &Myers LLP as co cnsl w/existing cnsls for P. (m) (Entered: 02/10/2003)
16 VERIFIED PETITION FOR PERMISSION TO PRACTICE PRO HAC VICE approved as to Peter Obstler, out of state cnsl for P (receipt #9816) (Entered: 02/10/2003)
17 DESIGNATION OF LOCAL COUNSEL approved as to Rodney Sumpter, loc cnsl for out of state cnsl Peter Obstler (Entered: 02/10/2003)
18 VERIFIED PETITION FOR PERMISSION TO PRACTICE PRO HAC VICE approved as to Luann L. Simmons, out of state cnsl for P (Entered: 02/10/2003)
19 DESIGNATION OF LOCAL COUNSEL approved as to Rodney E. Sumpter, loc cnsl for out of state cnsl Luann L. Simmons, cnsl for P. (Entered: 02/10/2003)
20 MOTION FOR MISCELLANEOUS RELIEF for enlargement tm to effect service of process on D, Robert Floyd obo P (Entered: 02/10/2003)

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 7 of 10

05/23/2000 05/30/2000 06/05/2000 06/05/2000 06/12/2000
06/21/2000 06/30/2000
07/17/2000 07/21/2000 07/21/2000 07/26/2000 07/27/2000 07/28/2000 07/28/2000
07/28/2000
07/31/2000 07/31/2000 08/01/2000 08/10/2000 08/16/2000 08/17/2000 08/18/2000 08/21/2000

21 ORDER P has till 8/1/2000 to effect service of the summons and complaint upon Robert Floyd. mld 5/24/00 (Entered: 02/10/2003)
22 AMENDED COMPLAINT first obo P. added D Washoe County School District. (Entered: 02/10/2003)
23 MAIL RETURNED as to Item #21 #22 addressd to Michael Tubach (co−counel for P) marked return to sender. (Entered: 02/10/2003)
24 ORDER action referred to the clerk of court for reassigmt. (Entered: 02/10/2003)
25 ORDER aciton reassigned to JBR for all further procedngs; counsel advised all further docs shall bear correct case # CV−N−00−0050−JBR(RAM); clk is directed to change file &docket to reflect reassig,t (Entered: 02/10/2003)
26 CERTIFICATE OF SERVICE as to Item #22 upon Robert Cox agent designated to accpt service upon Ds obo P (m) (Entered: 02/10/2003)
27 MOTION TO DISMISS 1st, 2d, 3d, 4th, 7th, 8th claims for relief and claim for punitive damages obo Ds, Indiv Ds and Washoe County School District. (m) (Entered: 02/10/2003)
28 RESPONSE IN OPPOSITION TO MOTION to mtn to dism (#27) obo P. (m) (Entered: 02/10/2003)
SUMMONS ISSUED as to Robert Floyd (Entered: 02/10/2003)
29 ORDER ON STIPULATION all discovery in this action stayed until mtn to dism (#27) is ruled upon. mld 7/24/00 (Entered: 02/10/2003)
30 ORDER Teleph conf is sched for 7/28/00, 4pm. cnsl telph notif. mld 7/27/00 (Entered: 02/10/2003)
31 RESPONSE TO MOTION to doc #28 by directing the Crt to Tanner v Prima Dnona Resorts, attached hereto as exhbt A obo P. (m) (Entered: 02/10/2003)
33 MOTION FOR MISCELLANEOUS RELIEF to exceed page limit obo Indiv Ds and Washoe County School District. (m) (Entered: 02/10/2003)
32 MISCELLANEOUS HEARING dtd 7/28/00: Crt discloses to parties tht his son is an assoc in the law firm of Walther, Key, Maupin, etc. whch represents ds in this case and that his son has nothing to do with this or other cases assigned to this Court. Ps cnsl (Entered: 02/10/2003)
34 ORDER Crt has considered Ds ex parte application to exceed page limits; good cause appearing, it is hereby ordered that D's application is granted. mld 7/31/00 (Entered: 02/10/2003)
36 MOTION FOR PROTECTIVE ORDER limited: to staying discv pend dec on mtn to dism/req for qualified immunity obo Ds. (m) (Entered: 02/10/2003)
35 REPLY TO RESPONSE TO MOTION to oppo (#28) to mtn to dism (#27) obo Ds. (m) (Entered: 02/10/2003)
37 SUMMONS RETURNED EXECUTED as to Robert Floyd personally srvd on 7/31/00 (Entered: 02/10/2003)
38 MOTION FOR JOINDER of D, Robert Floyd, ion D's Mtn to dism (#27) (Entered: 02/10/2003)
39 SCHEDULING ORDER disc c/o 7/2/2001; dispo mtn c/o 8/1/2001; jptno due 8/31/2001 (Entered: 02/10/2003)
MISCELLANEOUS DOCUMENT Signed consents to proceed bef USMJ. (Entered: 02/10/2003)
MISCELLANEOUS DOCUMENT received P's Henkle's opposition to D's mtn for limited protective order staying discovery (#36). (faxed cpy) (Entered: 02/10/2003)
40 RESPONSE IN OPPOSITION TO MOTION to D's mtn for limited protective order staying discovery #26 obo P. (m) (Entered: 02/10/2003)

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 8 of 10

09/01/2000 09/05/2000 09/05/2000 09/11/2000
09/11/2000
09/15/2000
09/15/2000 09/25/2000 10/19/2000 10/20/2000
10/26/2000 11/14/2000 11/15/2000 11/16/2000 11/27/2000 02/28/2001
03/06/2001 03/13/2001

41 REPLY TO RESPONSE TO MOTION to P's oppo (#40) to D's mtn for limited protective order staying discovery obo Ds, Indiv Ds and the Washoe County School District. (m) (Entered: 02/10/2003)
42 MISCELLANEOUS DOCUMENT to d's reply (#41) obo Ds. Indiv ds and Washoe County School District. (m) (Entered: 02/10/2003)
43 MOTION FOR JOINDER in D's mtn for limited Protective stay (#36) obo D, Robert Floyd. (m) (Entered: 02/10/2003)
45 ORDER the above entitled action is hereby reassigned to the Honorable Kent J. Dawson, USDJ, for all fur proceedings. Cnsl are advsd to all fur doc sh bear correct case # CV−N−00−0050−KJD(RAM). Clk of Crt is dir to change file and docket to reflect his a (Entered: 02/10/2003)
44 ORDER Ds hereby withdraw the mtn for limited protective order and parties sh bear their own fees and costs incurred in moving for and opposing the pend protective order mtn (#36); P Henkle sh not srv any disc on divi Ds Gregory Hausauer, Rende Floyd Robb, (Entered: 02/10/2003)
46 ORDER above entitled action is hereby refer to the hon ROBERT A. MCQUAID< Jr, USMJ, for all fur proceedings and entry of final judgment in accord with LR IB 2−1. Cnsl are advsd that all fur docs sh bear the correct case # CV−N−00−0050−RAM. Clk of Crt is (Entered: 02/10/2003)
47 ORDER ORD that this case be refer to Honr ROBERT A. MCQUAID, JR, USMJ for all fur procedings and entry of judgment in accor w/ 28 usc 636(c), FRCivP 73 and the foregoing consent of all parties. (Entered: 02/10/2003)
48 ORDER ON MOTION TO SUBSTITUTE ATTORNEY ord Kent Robison, Esq, subs in as loc cnsl and Rodney E. Sumpter, subs out as loc cnsl for P. mld 9/27/00 (Entered: 02/10/2003)
MISCELLANEOUS DOCUMENT stip for protective order re discovery; (Entered: 02/10/2003)
49 ORDER ON STIPULATION for protective ord re: discovery, whereas, the parties to the above captioned actn seek disc of info &recs tht may be subj to the privacy protections of the Federal Educational Records Protection Act ("FERPA') &other privacy rights (Entered: 02/10/2003)
50 ORDER hearing set 11/16/00 at 9am re D's mtn to dism (#27). Cnsl teleph notif.. mld 11/1/00 (Entered: 02/10/2003)
MISCELLANEOUS DOCUMENT REQ to supplement oppo (#28 ) to Ds mtn to dism (#27) obo P. Faxed Cpy (Entered: 02/10/2003)
51 RESPONSE IN OPPOSITION TO MOTION to P's req for leave to supplement (#see event entry dtd 11/14/00) obo Ds. (Entered: 02/10/2003)
52 MISCELLANEOUS HEARING re Ds mtn to dism (#27) dtd 11/16/00: ORD that this matter is taken under submission. (C/R Cathy Worken) mld 11/17/00 (Entered: 02/10/2003)
53 MOTION FOR PROTECTIVE ORDER obo Shane Tacket and Paul Edgington, (Washoe County School District) . (m) (Entered: 02/10/2003)
54 ORDER D's mtn to dism P's 1st, 2d, 7th, 8th claims for relief is granted. D's mtn to dism P's 3d 4th claims for relief is denied; D's mtn to dism the punitive damages claims agnst D, Gregory in his official capacity in the 3d and 4th Claims for relief is (Entered: 02/10/2003)
55 ORDER teleph status conf set 3/13/01 230pm. cnsl teleph notif. mld 3/7/01 (Entered: 02/10/2003)
56 MISCELLANEOUS HEARING re teleph status conf dtd 3/13/01: ORD mtn for reconsideration/mtn for certification obo P sh be submitted to the court after it has been briefed. Aftr the court rules on thoses mtns, sheduling issues will be discussed. (tape 01− (Entered: 02/10/2003)

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 9 of 10

03/14/2001 03/29/2001 04/06/2001 04/20/2001 05/22/2001
06/01/2001 06/04/2001 06/08/2001 06/12/2001
07/13/2001
07/26/2001
07/26/2001 07/27/2001
08/01/2001 08/01/2001 08/01/2001 08/01/2001 08/01/2001 08/03/2001

57 MOTION FOR RECONSIDERATION and reinstating his first claim for relief, or alt, leave to amend that claim and for certifying for interlocutory appeal purs to 28 USC 1292(b) re doc #54 obo P. (m) (Entered: 02/10/2003)
58 ORDER D hv til 4/6/01 to file/srv rspn to mtn for reconsider. mld 3/30/01 (Entered: 02/10/2003)
59 RESPONSE IN OPPOSITION TO MOTION to P's mtn for reconsideration (#57) obo Ds. (m) (Entered: 02/10/2003)
60 REPLY TO RESPONSE TO MOTION in spt of mtn for reconsideration (#57 ) obo P, Henkle. (m) (Entered: 02/10/2003)
61 ORDER tht pltf's mtn for reconsidertion (#57) is granted &pltf's 1st clm for relief is reinstated. Tht the mtn for certfication of Interlocutory Appeal (#57) is denied. Tht Pltf's req for a ruling on defts' qualified immunity defense is denied as moot (Entered: 02/10/2003)
62 ORDER a status conf to set the disc plan sched ord is sched 6/15/01 @ 10am., (Entered: 02/10/2003)
63 ORDER At the req of Mr. Obstler, the Status Conf to set the disc plan &S/O tht is sched on Friday 6/15/01 @ 10:30am., is rescheduled to Tuesday June 12, 2001 @ 10:30am. Mr. Obstler &Mr. Cox hv been tel notified. (Entered: 02/10/2003)
64 ANSWER TO COMPLAINT to First Amended Complaint (#22) obo Ds. (m) (Entered: 02/10/2003)
65 MISCELLANEOUS HEARING re status conf to set disc plan and sched order dtd 6/12/01 (RAM) disc deadline 11/30/01; Dispo mtn c/o 3/22/02; JPTNO/mtn limine due 4/26/02. Trial to commence 6/18/02, 9am; Upon stip disc c/o extend 3/15/02, dispo mtn deadline ex (Entered: 02/10/2003)
66 ORDER ON STIPULATION parties agree that only persons ID below sh hv access to teh conf info obtain by P during the oucrt of pretrial dsc in this case; conf info sh be safeguard by P who sh ensure that only the fol persons sh have access to conf info; P, P (Entered: 02/10/2003)
67 MOTION FOR MISCELLANEOUS RELIEF (ex parte) for order shortening time from 15 days to 6 days on whch this application and mtn for disqualification (#68) be responded by obo Indiv D and Washoe County School District. (m) (Entered: 02/10/2003)
68 MOTION FOR MISCELLANEOUS RELIEF for disqualification of cnsl; stay of action purs to insurance rehabilitation and protective order obo Indiv Ds and Washoe County School District. (m) (Entered: 02/10/2003)
69 ORDER D's ex parte applctn for order shortening time (#67) whch Ds rep is unopposed, is granted. P's oppo to D's mtn for disqual of cnsl, stay of action, and protect ord (#68) sh be filed and srvd no later than 8/1/01, and D's reply to P's oppo sh be fil (Entered: 02/10/2003)
70 RESPONSE IN OPPOSITION TO MOTION to Ds' mtn for disqualif (# 68 ) obo P. (m) (Entered: 02/10/2003)
71 DECLARATION of Peter Obstler in spt of P's Oppo (#70) obo P. (Entered: 02/10/2003)
72 DECLARATION in spt of Oppo (#70) obo P. (Entered: 02/10/2003)
73 DECLARATION of Michael F. Tubach in spt of Oppo (#70) obo P (Entered: 02/10/2003)
74 DECLARATION of Jon W. Davidson in spt of oppo (#70) obo P (Entered: 02/10/2003)
77 NOTICE (OTHER) of filing of original pleadings re doc #s 70−74 on 8/1/01 obo P. (m) (Entered: 02/10/2003)

Case: 3:00-cv-00050-RAM-RAM As of: 01/30/2014 01:51 PM PST 10 of 10

08/03/2001 08/03/2001 08/10/2001 08/13/2001 08/15/2001
09/05/2001 11/26/2001 12/13/2001 01/25/2002 09/10/2002 09/10/2002 09/13/2002
01/17/2003
01/27/2003

75 RESPONSE IN OPPOSITION TO MOTION To Ds mtn for disqual (#68 ) obo P. (m) (Entered: 02/10/2003)
76 REPLY TO RESPONSE TO MOTION to P's oppo (#75) to mtn to disqual (#68) obo Ds. (m) (Entered: 02/10/2003)
78 MOTION TO STRIKE portions of D's reply brief or in alt, for leave to file a sur−reply obo P. (m) (sur−reply attached. ) (Entered: 02/10/2003)
79 RESPONSE TO MOTION to mtn to strike portions (#78) obo Ds. (m) (Entered: 02/10/2003)
80 MISCELLANEOUS HEARING re doc #68 dtd 8/14/01: ORD mtn for disqualification of cnsl, stay of action, and protetive order #68 is denied; mtn for protective order is denied and disc sh go forward. The 30(b)(6) depo vac by the court will be resched. (C/R C (Entered: 02/10/2003)
81 ORDER ON MOTION FOR PROTECTIVE ORDER between parties (see ord for spfcs) (Entered: 02/10/2003)
82 ORDER at req of cnsl, teleph status conf is sched for 12/13/01, 10am. Mr Obstler/Cox have been teleph notif. (Entered: 02/10/2003)
83 MISCELLANEOUS HEARING dtd 12/13/01 re teleph status conf: J/t is cont from 6/18/02 to 11/4/02, 830am. Trial is expected to last 10 days. Cnsl will submit an amended discv plan and sched order. (tape 01−143) (Entered: 02/10/2003)
84 SCHEDULING ORDER (AMENDED) Disc c/o 7/26/02; disp mtn 8/9/02; JPTNO 10/3/02. (Entered: 02/10/2003)
85 PRETRIAL NOTICE ORDER Parties hv til 10/3/02 to lodge with court a proposed written pretrial order. (Entered: 02/10/2003)
86 ORDER ON MOTION TO DISMISS Parties, P and D, Loretta Rende, only sh be dism w/o prej with Henkle and Rende to bear their own respective costs, expenses, and atty fees incurred. (Entered: 02/10/2003)
87 ORDER ON MOTION TO DISMISS that in accord with the terms of the settlement agreement dtd 8/28/02 that the action is dism with prej as to all Ds EXCEPT D, Loretta Rende, the P and Ds hereby so dism to each bear their own attys fees and costs incurred, and (Entered: 02/10/2003)
88 ORDER ON STIPULATION parties stip that D Loretta Rende has completed the training required purs to underlying settlement agreement and that therefore this cae sh be dism with prej as to D, Rende, each party to bear their own atty's fees and assoc costs. (Entered: 02/10/2003)
89 NOTICE OF CHANGE OF ADDRESS re Lambda Legal Defense and Education Fund, Inc: 3325 Wilshire Blvd, Ste 1300Los Angeles, CA 90010. 213−382−7600−phone; 213−351−6050−Fax; E−mail LambdaLegal.org (Entered: 02/10/2003)