Free Status Report - District Court of Arizona - Arizona

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

J. Steven Sparks (State Bar No. 015561) SANDERS & PARKS, P.C. 3030 North Third Street, Suite 1300 Phoenix, Arizona 85012-3099 Telephone: (602) 532-5769 Fax: (602) 230-5051 [email protected] Attorneys for Defendants GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205, TANYA SOTO, STEVE SOTO, ANNIE PRESTON, KEITH PRESTON, CLAY KLAVITTER and JILL KLAVITTER UNITED STATED DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

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JOE RAMIREZ and ANA RAMIREZ, Individually and as Parents and Legal Guardians of JOSE RAMIREZ, Plaintiffs,

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vs. GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205; JOHN DOE AND JANE DOE I-X; ABC CORPORATIONS I-X; and XYZ PARTNERSHIPS I-X, Defendants. __________________________________ JOE RAMIREZ and ANA RAMIREZ, Individually and as Parents and Legal Guardians of JOSE RAMIREZ, Plaintiffs, vs. GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205; TANYA SOTO and
Case 2:03-cv-00060-ROS Document 142

) CASE NO.: CIV03-0060 PHX-ROS ) ) ) ) DEFENDANTS' STATUS REPORT ) REGARDING RAMIREZ I AND ) RAMIREZ II ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Filed 11/01/2006 Page 1 of 7

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

JOHN DOE SOTO; ANNIE PRESTON and JOHN DOE PRESTON; CLAY KLAVITTER and JANE DOE KLAVITTER; JOHN DOE AND JANE DOE I-X; ABC CORPORATIONS I-X; and XYZ PARTNERSHIPS I-X,

) ) ) ) ) ) ) Defendants. ) ___________________________________ )

Defendants, by and through counsel undersigned, submit the following Report concerning the status of Ramirez II in light of the Court's entry of summary judgment in Ramirez I. It is Defendants' position that the claims asserted in Ramirez II cannot proceed in light of the Court's ruling. This Court should hold, as a matter of law, that the claims asserted in Ramirez II were implicitly dismissed in the Court's Order granting Defendants' Motion for Summary Judgment dated September 20, 2006. I. FACTUAL BACKGROUND

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The facts of this case have been described ad nauseum in pleadings previously
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filed with this Court and are incorporated herein. provided for the Court's review:

However, a brief summary is

This action arises out of an alleged incident that allegedly occurred in the fall of 2000. At that time, Plaintiff, Jose Ramirez, Jr., was enrolled as a student at Cortez High

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School within the Glendale Union High School District. At all times relevant, Jose Ramirez was an adult ­ he was 19 years old in the fall of 2000. Plaintiffs contend that Jose Ramirez and other special education students were taken to a physical education class sometime in the early fall of 2000. Plaintiffs further
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allege that, at some point during the P.E. class, the teacher's assistant and the P.E. teacher left the students unattended in the locker room. There is, however, no evidence to support that allegation.

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Plaintiffs further contend that, at some point during the P.E. class, some of Jose Ramirez' fellow students (all of whom suffer from severe mental and physical disabilities, including blindness) physically and sexually assaulted him. In support of their claim that this "physical and sexual assault" occurred, Plaintiffs rely heavily upon

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

the testimony of Jose Ramirez himself, which can only be characterized as wildly inconsistent and of dubious probative value. Plaintiffs also rely upon bits and pieces of testimony from the other mentally disabled and blind students, which is totally unreliable and essentially proves nothing. Suffice to say, it is highly contested whether

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anything happened in the locker room, much less a sexual assault, and it is far from "undisputed," as Plaintiffs have suggested. Plaintiffs have also taken the position that two of Plaintiffs' teachers (Clay Klavitter, the P.E. teacher, and Tanya Soto, the special education teacher) and perhaps an administrator (Annie Preston) somehow learned of the "assault" on the day that it allegedly occurred. Once again, the evidence offered in support of this allegation is sketchy and unreliable at best. All of the school personnel have testified under oath that, in their opinion, no "assault" ever took place and, if it did, they were certainly unaware of it at that time. All of the school personnel have testified under oath that nothing occurred that would have in any way triggered an understanding that some form of assault had taken place. They did not witness any such assault (although Coach
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Klavitter was in the locker room), nobody told them about any assault, and there were no objective signs that a physical or sexual assault had occurred (i.e., no blood, no feces, no smell, no cuts and no scrapes). Simply put, the evidence is that the school had no

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knowledge of the alleged assault until much later. The school personnel have testified under oath that the first time they learned of the alleged assault was when Plaintiff Ana Ramirez arrived at the school in March 2001 and reported the alleged incident. They testified to being surprised at the allegation and

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

having no prior knowledge of any such incident. It is undisputed that the police were contacted literally within minutes of that report from Mrs. Ramirez. Simply put, there is no competent evidence to support the allegation that the Defendant School District or its employees had any reason to know of the alleged

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assault upon Jose Ramirez. Further, there is no competent evidence through which this Court could possibly conclude that Defendants failed to timely report the information concerning the alleged assault. II. RAMIREZ II

As this Court is aware, Plaintiffs attempted to amend their Complaint in this action to join additional Defendants and add additional claims, including the failure to comply with statutory reporting requirements. This Court denied Plaintiffs' Motion to Amend. Shortly thereafter, Plaintiffs did an end-run around the Court's ruling and filed a second action, which for a time was assigned to the Honorable Virginia Mathis. This action has been referred to as "Ramirez II." Ultimately, Ramirez II was consolidated with Ramirez I.
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The Complaint in Ramirez II, which is now consolidated with the instant action, contained a host of factual allegations ­ some of which relate to the "failure to report" and some of which relate to the alleged assault and the alleged failure of the Defendants

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to properly supervise Plaintiff Jose Ramirez. In other words, the Ramirez II Complaint did not merely allege that the Defendants failed to comply with their statutory reporting obligations, as Plaintiffs have suggested. It also alleged that the Defendants failed to comply with the standard of care with regard to supervision of special education

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

students ­ claims that were already alleged in Ramirez I and which were addressed in Defendants' Motion for Summary Judgment. In light of the foregoing, it cannot be reasonably disputed that all claims related to the assault itself or Defendants' supervision of the students or Defendants' training of

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the teachers were dismissed by this Court's Order dated September 20, 2006. In addition, the remaining claims in Ramirez II (i.e., failure to timely report) were implicitly dismissed by this Court's September 20, 2006 Order because they arise out of the same set of facts and involve the same legal principles. As this Court put it: . . . Ramirez II involves the same 1983 claim filed in Ramirez I, as well as a claim that Defendants conspired to violate the Plaintiffs' rights under 42 U.S.C. § 1985 ("1985 claim"). The 1983 claim and 1985 claim involve similar questions of law, since both statutes provide recovery of damages when privileges or immunities are deprived. All of the claims arise out of the same nucleus of operative facts and relate to the alleged abuse that occurred that occurred while the Plaintiff was a student at Apollo and Cortez schools. (See Order dated January 5, 2006 at Page 5).
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More to the point, in Defendants' Motion for Summary Judgment in Ramirez I, one of the key issues was whether Plaintiffs could prevail on their §1983 claim given their inability to identify any official policy implemented by the District that infringed

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on the constitutional rights of the Plaintiffs. Defendants noted that after years of litigation, Plaintiffs' counsel was still unable to identify any constitutional right that had been violated or any official policy that had been implemented, even when repeatedly asked that question in open court. In light of this fact, the Court granted Defendants'

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

Motion for Summary Judgment and found that Plaintiffs' Section 1983 claims fail as a matter of law.1 Just as Plaintiffs failed to make a case for §1983 liability in Ramirez I because they could not articulate the constitutional right that had been violated and could not

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point to any official policy promulgated by the District, Plaintiffs also cannot meet their burden of proving the §1983 and §1985 claims in Ramirez II. Both §1983 and §1985 require a showing of some intentional, affirmative act on the part of the District (i.e, an official policy in the case of §1983 and a conspiracy between two or more persons in the case of §1983 (See, Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087 (2nd Cir. 1993)). The claims in Ramirez I and Ramirez II are substantially similar and in both cases, Plaintiffs have failed to make the required showing of any intentional, affirmative act on the part of the District. This Court has already held that Plaintiffs could not meet This ruling was perfectly correct given settled law on the issue. See, Dorothy J v. Little Rock School Dist., 7 F.3d 729 (8th Cir. 1993)(state-mandated attendance did not impose constitutional duty on state to protect mentally retarded students under §1983). Case 2:03-cv-00060-ROS Document 142 - Filed 11/01/2006 Page 6 of 7 -6
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their burden of proving an official policy or a constitutional violation in Ramirez I. For the same reasons, the §1983 and §1985 claims in Ramirez II fail as a matter of law and were implicitly dismissed through this Court's Order dated September 20, 2006.

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

RESPECTFULLY SUBMITTED this 1st day of November, 2006 SANDERS & PARKS, P.C.

By: s/J. Steven Sparks J. Steven Sparks 3030 N. Third Street, #1300 Phoenix, Arizona 85012 Attorney for Defendants I hereby certify that on November 1, 2006, I electronically transmitted the foregoing document to the Clerk's office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following EM/ECF Registrants: [email protected] Attorneys for Plaintiffs To be hand-delivered as a courtesy copy on November 2, 2006, to the Honorable Roslyn O. Silver. s/ J. Steven Sparks_____________

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Case 2:03-cv-00060-ROS

Document 142 -7

Filed 11/01/2006

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