4:18-cv-02270-DCC Date Filed 11/21/18 Entry Number 10 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

L.C., as the parent and natural guardian of

) C.A. No. 4:18-cv-02270-RBH
JANE DOE, a minor, )
)
Plaintiff, )
)
)
vs. ) JOINT RESPONSES TO LOCAL
) RULE 26.03 INTERROGATORIES
CARRIE BROCK, MACK BURGESS, )
HESTER GADSDEN, and )
WILLIAMSBURG COUNTY SCHOOL )
DISTRICT, )
)
Defendants. )
____________________________________)

NOW COME the parties, by and through their respective counsel of record, and submit

their Joint Responses to Local Rule 26.03, DSC, as follows:

1. A short statement of the facts of the case:

RESPONSE: This matter arises out of an alleged student on student sexual assault

that occurred in the boy’s locker room/restroom of Kingstree Middle Magnet School on or about

January 7, 2016 and from alleged acts and omission of school faculty, staff, employees, agents,

and administers, both before and after the alleged assault, which resulted in a violation of

Plaintiff’s rights.

2. The names of fact witnesses likely to be called by the parties and a brief summary

of their expected testimony:

RESPONSE:

a. Jane Doe: Jane Doe is the minor plaintiff in this action and is expected to testify

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regarding the allegations set forth in the Complaint with respect to the circumstances
surrounding the alleged sexual assault, her alleged injuries and damages.

b. LC: L.C. is the mother of the minor Jane Doe and her parent and natural guardian who
has filed this action on behalf of her daughter. She will testify regarding her
interactions with Jane Doe, the Kingstree Police Department, Kingstree Middle Magnet
School, and medical providers before and/or after the sexual assault on Jane Doe.

c. Mack Burgess, Former Assistant Principal, Kingstree Middle Magnet School: Mack
Burgess served as Assistant Principal of Kingstree Middle Magnet School at the time
of the incident which forms the basis of this lawsuit. Mr. Burgess is expected to testify
regarding the District’s investigation of the alleged incidents, steps taken after the
alleged incidents were brought to the District’s attention, the District’s policies and
procedures, training provided to staff, information known to him regarding prior sexual
misconduct by students, if any, matters relevant to the allegations in the Complaint and
Answer filed in this matter, and possibly other issues.

d. Carrie Brock, Former Superintendent, Williamsburg County School District: Ms.

Brock served as Superintendent of Williamsburg County School District at the time of
the incident which forms the basis of this lawsuit. Ms. Brock is expected to testify
regarding the District’s investigation of the alleged incidents, steps taken after the
alleged incidents were brought to the District’s attention, the District’s policies and
procedures, training provided to staff, matters relevant to the allegations in the
Complaint and Answer filed in this matter, and possibly other issues.

e. Hester Gadsden, Former Principal, Kingstree Middle Magnet School: Hester Gadsden
served as Principal of Kingstree Middle Magnet School at the time of the incident
which forms the basis of this lawsuit. Mr. Gadsden is expected to testify regarding the
District’s investigation of the alleged incidents, steps taken after the alleged incidents
were brought to the District’s attention, the District’s policies and procedures, training
provided to staff, matters relevant to the allegations in the Complaint and Answer filed
in this matter, and possible other issues.

f. Brenda Lawrence, Counselor, Kingstree Middle Magnet School: Brenda Lawrence

served as a Counselor at Kingstree Middle Magnet School at the time of the incident
which forms the basis of this lawsuit. Ms. Lawrence is expected to testify regarding
initially finding the students, the District’s investigation of the alleged incidents, steps
taken after the alleged incidents were brought to the District’s attention, and possibly
other issues.

g. Teachers, faculty, administrators and representatives of Kingstree Middle Magnet

School who have information regarding: the student attacker; policies and procedures;
investigations; Jane Doe; and/or the exercise of supervision over students.

h. Latasha Moore, Security Officer, Kingstree Middle Magnet School: Latarsha Moore

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served as a Security Officer at Kingstree Middle Magnet Middle School at the time of
the incident which forms the basis of this lawsuit. Ms. Moore is expected to testify
regarding the District’s investigation of the alleged incidents, steps taken after the
alleged incidents were brought to the District’s attention, and possibly other issues.

i. The Fed. R. Civ. P. 30(b)(6) designee of Williamsburg County School District

regarding matters relevant to the allegations contained in the Complaint and Answer.

j. Current and former Kingstree Police Department officers regarding their interactions
and dealings with the parties before and after the alleged sexual assault on Jane Doe.

k. Any experts identified by the parties in accordance with this Court’s Scheduling Order.

l. Medical providers and professionals who treated and/or evaluated Jane Doe after this
incident.

m. The parties reserve the right to depose witnesses named by the parties in response to
the discovery requests served, as well as any other person who has knowledge
regarding these claims and defenses.

n. Former Kingstree Middle Magnet School students identified through discovery who
have knowledge of the alleged sexual assault and information regarding interactions
between the Minor Plaintiff and the male student attackers.

3. The names and subject matter of expert witnesses. (If no witnesses have been

identified, the subject matter and field of expertise should be given as to experts likely to be

offered):

RESPONSE: The parties have not identified experts at this time, but they reserve their

right to do so. If the parties identify experts, they will disclose their expert witnesses in

accordance with the Court’s Order by the designated deadline. Expert witnesses likely will testify

in the areas of public school administration and the exercise of supervision over minor students,

psychology, injuries and damages.

4. A summary of the claims or defenses with the statutory and/or case citation support

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the same:

RESPONSE:

Plaintiff’s position: This action is brought on behalf of the minor Jane Doe who was a

student at Kingstree Middle Magnet School (“KMMS”). Plaintiff alleges that on January 7, 2016,

Jane Doe was sexually assaulted by a male student in the boy’s locker room/restroom at KMMS.

KMMS is a public school operated by Defendant Williamsburg County School District

(“WCSD”). At all times pertinent to this action, Defendant Carrie Brock was the superintendent

of WCSD, Defendant Mack Burgess was the KMMS vice-principal and Defendant Hester Gadsden

was the KMMS principal. Amongst other allegations, Plaintiff alleges: that the Defendants had

actual notice of the student attackers’ propensity to sexually assault female students; that through

the Defendants’ affirmative acts they created or increased the risk of danger to Jane Doe and

similarly situated minor female students; and that Defendants’ conduct before and/or after the

sexual assault deprived Jane Doe of her ability to earn a public education free from discrimination

and harassment. Plaintiff alleges physical, emotional and constitutional injuries which entitle her

to actual and punitive damages in an amount to be determined by the jury and attorney’s fees and

costs.

(a) Supervisory Liability: Pursuant to 42 U.S.C. § 1983, Plaintiff has brought supervisory

liability causes of action, or state-created danger causes of action, against Defendants

Brock, Gadsden and Burgess in their individual capacities, acting under the color of

state law and within the course and scope of their official duties as administrators and

principals at WCSD and KMMS. See e.g. Doe v. Rosa, 795 F.3d 429 (4th Cir. 2015);

Pagano by Pagano v. Massapequa Pub. Sch., 714 F. Supp. 641 (E.D.N.Y. 1989); 42

U.S.C. § 1988(b) (authorizing attorney’s fees); Smith v. Wade, 461 U.S. 30, 103 S. Ct.

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1625, 75 L. Ed. 2d 632 (1983) (punitive damages are available in a 1983 action).

(b) Violation of Fourteenth Amendment: Plaintiff has brought causes of action against all

Defendants, including Defendant WCSD, relating to the Defendants’ Deprivation of

Plaintiff’s Fourteenth Amendment Right to Equal Protection and Freedom from Sexual

Harassment in an Educational Setting pursuant to 42 U.S.C. § 1983. See e.g. Doe v.

Rosa, 795 F.3d 429 (4th Cir. 2015); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186

F.3d 1238 (10th Cir. 1999); Doe v. Bibb Cty. Sch. Dist., 83 F. Supp. 3d 1300 (M.D. Ga.

2015), aff'd, 688 F. App'x 791 (11th Cir. 2017)

(c) Title IX claim: Plaintiff has also brought a cause of action against Defendant WCSD

alleging Violation of Title IX of the Education Amendments of 1972. See e.g. 20

U.S.C. § 1681 – 1688; 20 U.S.C. § 1681(a); Davis Next Friend LaShonda D. v. Monroe

Cty. Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661 (1999); Doe v. Erskine Coll., No.

CIV.A. 8:04-23001RBH, 2006 WL 1473853, at *11 (D.S.C. May 25, 2006); Jennings

v. University of North Carolina, 340 F.Supp .2d 666, 673 (M.D.N.C.2004), aff'd, 444

F.3d 255 (4th Cir.2006); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91

L.Ed.2d 49 (1986).

Plaintiff anticipates there is additional statutory and case law to support her position and

theories based on specific facts to be determined in discovery. Accordingly, Plaintiff reserve the

right to rely upon such additional authority as this case proceeds.

Defendants’ position:

(a) The individual Defendants are entitled to have this action dismissed on the grounds

of qualified immunity. They acted with a reasonable, good-faith belief in the

lawfulness and constitutionality of their actions, and the alleged wrongful conduct did

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not violate clearly settled law or established rights. The conduct of the individual

Defendants was lawful, justified, and made in good-faith. See DiMeglio v. Haines,

45 F.3d 790 (4th Cir. 1995).

(b) Plaintiffs’ claims for punitive damages are subject to, limited by, and governed by

the due process clause of the United States Constitution. See, e.g., Baker v. Runyon,

114 F.3d 668 (7th Cir. 1997); Terry v. Ashcroft, 336 F.3d 128 (2nd Cir. 2003); Schley

v. College of Charleston, 83 F.3d 416 (4th Cir. 1996).

(c) Plaintiff failed to mitigate her damages, if any.

(d) At all times relevant to the Complaint, Defendants acted within the scope of their

employment official duties and are immune from individual liability under the South

Carolina Tort Claims Act.

(e) To the extent that Plaintiff seeks recovery under 42 U.S.C. § 1983, her claims are

barred because no official policy or custom of Defendant School District played any

part in the alleged constitutional violation, which is expressly denied. See Dennis v.

County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995).

(f) Any injury claimed to have been sustained by Plaintiff was not proximately caused

by an act of Defendants, but rather was due to the intervening, independent, and

intentional act of a third person; said act being the sole, proximate and direct cause of

Plaintiff’s alleged injuries, for which Defendants are not liable.

Defendants anticipate there is additional statutory and case law to support their legal

defenses and theories based on specific facts to be determined in discovery. Accordingly,

Defendants reserve the right to rely upon such additional authority as this case proceeds.

5. Absent special instructions from the assigned judge, the parties shall propose dates

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for the following deadlines listed in Local Civil Rule 16.02:

a. Exchange of Fed. R. Civ. P. 26(a)(2) expert disclosures;

b. Completion of discovery.

RESPONSE: Counsel for the respective parties have agreed to the revisions to the

proposed Scheduling Order, which is being submitted to the Honorable Judge Bryan Harwell.

6. The parties shall inform the Court whether there are any special circumstances

which would affect the time frame supplied in preparing the scheduling order.

RESPONSE: At the current time, counsel for the parties are not aware of any proposed

deadlines which would impact the ability to complete discovery and be prepared for trial as noted

in the proposed Amended Scheduling Order submitted for the Court’s review.

7. The parties shall provide any additional information requested in the pre-scheduling

order or otherwise as requested by the assigned judge.

RESPONSE: No additional information has been requested at this time.

Respectfully submitted,

S/Matthew T. Douglas
Matthew T. Douglas
Fed. I.D. No. 10091
KNIGHT & WHITTINGTON, LLC
207 East Third North Street
Summerville, South Carolina 29483
P: (843) 821-9700
F: (843) 821-0031
mdouglas@knightwhittington.com

Attorneys for Plaintiff

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Respectfully submitted,

S/Vernie Williams
Vernie Williams
Fed. I.D. 7094
HALLIGAN MAHONEY & WILLIAMS, PA
1301 Gervais St., #900
Columbia, South Carolina 29201
P: (803) 254-4035
F: (803) 771-4422
vwilliams@hmwlegal.com

Attorneys for Defendants

Dated: November 21, 2018