Free Status Report - District Court of Arizona - Arizona

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EDWARD D. FITZHUGH P.O. Box 24238 Tempe, Arizona 85285-4238 (480) 752-2200 Bar No. 007138 Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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vs. Joe Ramirez and Ana Ramirez, Individually and as Parents and Legal Guardians of Jose Ramirez; Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV03-0060 PHX-ROS STATUS REPORT RE: RAMIREZ I AND RAMIREZ II

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Glendale Union High School District No. 205; John Doe and Jane Doe I-X; ABC Corporations I-X; and XYZ Partnerships I-X, Defendants.

(Assigned to the Honorable Roslyn O. Silver)

COME NOW Plaintiffs and submit their report regarding the status of Ramirez II

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(Plaintiffs' second cause of action). The source of the facts cited herein have been cited

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repeatedly in earlier pleadings. This Court has dismissed Ramirez I.

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It is clearly evident from the applicable facts and law that the two claims are distinct

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and that Ramirez II, as a separate cause of action, should proceed to trial.

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SUMMARY

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Plaintiff Jose Ramirez Jr. is mentally handicapped. He was enrolled at Cortez High

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School, in the Glendale Union High School District, in a class with other mentally

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handicapped children. The children were always monitored.

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Sometime in early October 2000, Plaintiff and the other students were taken to gym

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class. The teacher's assistant assigned to monitor the boys left them unattended. The

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P.E. teacher had also left the boys unattended in the gym locker room. During this time,

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three of the other boys physically and sexually assaulted Plaintiff. The young men that

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physically and sexually assaulted Jose threatened that if he told anyone, they would kill his parents and burn down his house. The teacher's assistant, Dominic Guzman, was located in jail. After complying with substantial procedural requirements, which also required an order from the court, his deposition was scheduled in jail. Plaintiffs intended to include Guzman's deposition testimony in Plaintiffs' Response to Defendants' Motion for Summary Judgment. Without explanation, sua sponte, the court cancelled his deposition. Mr. Guzman's deposition is necessary to support the testimony of the three perpetrators, as well as respond to the testimony of the individual Defendants. As cited in prior pleadings, all three of the perpetrators admitted the assault occurred, although some refused to take any responsibility. The three perpetrators, and Jose, testified that the individual Defendant teachers and administrators learned of the assault the same day it occurred. See, Plaintiffs' Response to Motion to Dismiss, pp. 2-4. As described in Plaintiffs' May 20, 2004, Motion to Amend, it was only during the deposition of one of the perpetrators, Ruben Ortega, that Plaintiffs first learned that two Cortez High School teachers, and the vice-principal, had learned of the assault on Jose the

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day it occurred; and, that, in violation of State law, the educators did not report the assault

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first time that they had been made aware of the assault. to the authorities or inform Jose's parents. Jose's parents were never told about the assault, and Jose was too frightened to tell them what had happened to him. Approximately six months after the assault, in March 2001, after suffering persistent problems and pain with a "rectal rash," Jose finally told his parents of the assault. Mr. and Mrs. Ramirez confronted the school personnel who told them this was the

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In the subsequent depositions of the two other perpetrators, they described in detail how the teachers and administrators learned of the assault on the day it occurred; the

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teachers' reactions; as well as the fact that each of the boys was individually interviewed the day of the assault and described to teachers and administrators what happened. See, Plaintiffs' Response to Motion to Dismiss, filed in Ramirez II.

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Defendants' failure to report the assault not only violated Arizona common law by

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The duty of the school to protect the children in its care is well established in Arizona Under this section, school personnel have a mandatory duty to report to police officers or to the Department of Economic Security (Child Protective Services). See, Op. Atty Gen 182-086. Schools have a duty to protect children in their care; by statute, Defendants were required, and expected, to report the assault. D. their failure to protect Jose (prompt treatment would have minimized the impact of the injuries he suffered), but their actions also violated the Arizona child abuse reporting laws. ARS Sec. 13-3620: Duty to report abuse, physical injury, neglect and denial or deprivation of medical or surgical care A. Any person who reasonably believes that a minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect that appears to have been inflicted on the minor by other than accidental means or that is not explained by the available medical history as being accidental in nature . . . shall immediately report or cause reports to be made of this information to a peace officer or to child protective services in the department of economic security . . . . For the purposes of this subsection, "person" means: . . . 4. School personnel . . . . *** Reports shall be made immediately by telephone or in person and shall be followed by a written report within seventy-two hours.

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case law. Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652 (1968); Warrington v. Tempe

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Elementary School District No. 3, 197 Ariz. 63, 3 P.3d 988 (App. Div 1, 1999); State v. Starr, 57 Ariz. 270, 113 P2d 356 (1941). The legal basis of, and even the underlying facts of, Ramirez II are distinct from

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Ramirez I. The Ramirez II case concerns the failure of the individual Defendants to report

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___/s/S.J. Odneal____ J. Steven Sparks, Esq. Sanders & Parks, P.C. 3030 N. Third Street, Ste. 1300 Phoenix, Arizona 85012-3099 Attorneys for Defendants I hereby certify that on November 1, 2006, I electronically transmitted the foregoing to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: /s/ Edward D. Fitzhugh Edward D. Fitzhugh Attorney for Plaintiffs the assault, and the cause of action legally survives the dismissal of Ramirez I. RESPECTFULLY SUBMITTED this 1st day of November, 2006.

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