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Plaintiffs,
V.
Defendant,
NO. ____________
Jury Demand
COMPLAINT
COME THE PLAINTIFFS, J.M., by and through his Parents, A.M. and D.M.,
filing this Complaint against Rutherford County Board of Education. They show:
I. INTRODUCTION
1. J.M. has autism and other disabilities. Now in eighth grade, he has suffered a
torrent of avoidable injuries through Rutherford County’s neglect and indifference to his
care. His parents, A.M. and D.M. 1, on J.M.’s behalf, simply must take action to recover
1 Although known to Defendant, Plaintiffs use initials to protect the privacy of the
minor, a special education student.
below, J.M.’s claims are brought for sexual harassment under Title IX, denial of equal
protection of the laws under the Fourteenth Amendment, and disability harassment
2. J.M., by and through his Parents, A.M. and D.M., live in Mt. Juliet, Tennessee in
Rutherford County.
financial assistance and is a public entity as defined in Title II of the Americans with
Disabilities Act. Thus, it is obligated under Federal law to comply with laws guaranteeing
U.S.C. § 1343, for claims brought to address equal protection violations as well as
differential and unequal treatment. Plaintiffs bring claims under Title IX (the Education
Amendments Act 20 U.S.C. §1681), and the Fourteenth Amendment to the United States
Constitution, through 42 U.S.C. §1983. Further, Plaintiffs bring claims under Title II of
the Americans with Disabilities Act, 42 U.S.C. §12101 et. seq.; and Section 504 of the
5. Venue is proper in this judicial district under 28 U.S.C. §1391(b) because the
Rutherford County Board of Education operates in Rutherford County where J.M., by and
through his Parents, A.M. and D.M., lives and attends school, and where the causes of
action accrued.
a “free appropriate public education” under the IDEA. Accordingly, this Court has
jurisdiction and administrative exhaustion (e.g. through the IDEA’s state due process
procedures) is not required, nor would it be appropriate. See e.g., Fry v. Napoleon Cmty.
Sch., 137 S. Ct. 743, 754 (2017); F.H. v. Memphis City Schools, 764 F.3d 638, 644 (6th Cir.
2014). It would be futile because administrative hearings do not address personal injury
damages and cannot award money damages at all. Additionally, exhaustion would create
an additional administrative barrier in cases of abuse or personal injury not present for
III. FACTS
7. J.M. is a youth with special needs. Now in eighth grade, he has “disabilities” as
defined under Section 504 and the ADA. Due to autism, intellectual disability, low tone
and apraxia, he is substantially limited in the major life activities of communicating (he
8. J.M.’s parents have seen him experience a number of serious, avoidable, painful
9. In sixth grade, 2016-2017, Rutherford County’s own school personnel put J.M.
alone in a classroom bathroom. He reacted by striking his head and mouth against the
10. In seventh grade, 2017-2018, J.M. was left unmonitored. He climbed onto a large
therapy ball, foreseeably fell off, and struck his face and mouth on the concrete floor,
breaking two teeth. He required multiple surgeries and expensive dental work that is
ongoing.
male, 6’4,” 300 pounds, who was reported (to J.M.’s mother) to have physically assaulted
a child in a neighboring school district. The man also has a criminal history of pleading
12. Nonetheless, Rutherford County hired this man to care for J.M. Shortly after the
hire, the man was alone with J.M. A custodian walked in to find the man “with his pants
at his ankles and his genitals being exposed.” The custodian went straight the principal
13. Rutherford County merely took the report and left the man in place. It did not
14. The following day, September 27, 2018, another school employee entered J.M.’s
room. This time, the man was observed standing over J.M., who lay on a table, with the
man’s hand touching J.M.’s groin area. Like the custodian, the school employee reported
15. This time, Rutherford County’s principal reported both matters to the School
Resource Officer (SRO). The SRO then informed J.M.’s parents of both incidents, their
first notice.
16. The inappropriate touching targeted J.M. because his intellectual and verbal
limitations made J.M. unable to report himself. Upon information and belief, the man
did not touch eighth graders in this manner who had lesser disabilities, or any non-
disabled students. Thus, the actions were because of disability (his inability to refuse)
and also because of sex (being sexually inappropriate). This harassment was severe and
resulted, in part, from Rutherford County’s failed preventive measures and failure to
18. The harassment has damaged J.M. emotionally. He has been diagnosed with
emotional distress in the form of acting-out, crying, sadness, fear, and trauma owing to
the harassment.
19. Given the sheer number of physical injuries owing to neglect and/or indifference
determined the school is unsafe for J.M. Accordingly, J.M. has been placed on
“homebound” instruction.
would receive instruction from Rutherford County for only three hours per week total, a
substantial loss of learning and educational benefits occasioned by the harm above.
21. Under Title IX of the Education Amendments Act of 1972, 20 U.S.C. §681(a), “No
person in the United States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any education program
22. J.M., was subjected to staff-on-student sexual assault based upon his gender that
was severe, pervasive, objectively offensive, and prohibited by Title IX. It failed to take
precautionary measures with its hire. It failed to train and supervise. It failed to take
remedial actions after its employee was found naked with J.M. And it failed to offer aid,
indifference.
24. J.M. enjoys the right to personal security, bodily integrity, and Equal Protection of
the Laws in the public school setting. Rutherford County subjected J.M. to violations of
his right to bodily integrity and Equal Protection of the Laws by failing to take appropriate
preventive measures; failing to adequately hire, supervise and train; and by acting with
manifest indifference to sexual harassment and assault of J.M. by not taking appropriate
remedial action and not offering him any counseling or aid, causing loss of educational
opportunity.
25. Rutherford County’s actions and inactions were undertaken as part of a custom or
policy of such action and inaction, or were undertaken by employees with final
disabilities like J.M. J.M. has suffered a repeated plight of injuries through negligence or
gross negligence.
Count III: ADA & Section 504 Hostile Environment & Harassment.
26. Under the ADA, J.M. is not to be excluded from participation in, or be denied the
27. Similarly, under Section 504, J.M. enjoys equal access to education services and a
disabilities or with less disabilities who do not suffer abuse and neglect. J.M. was treated
disparately based upon his disability (non-verbal with cognitive impairments) and
abused, and unsupervised, including to the point of serious emotional and physical harm.
29. Thus, Rutherford County, through its neglect and/or deliberately indifferent
and creation of a hostile educational environment that it knew, or should have reasonably
known about, and subjected J.M. to discrimination on the basis of his disability which
Wherefore, Plaintiffs request the Court issue declaratory or injunctive relief for
appropriate harassment training; appropriate hiring protocols for working with children
and engage appropriate remedial measures; effective ADA and Section 504 training;
appropriate damages for physical and emotional harm; and attorneys fees, costs, and any
GILBERT McWHERTER
SCOTT BOBBITT, PLC
/s Jessica F. Salonus___________
JESSICA F. SALONUS (28158)
139 Stonebridge Boulevard
Jackson, Tennessee 38305
Telephone: (731) 300-0970
jsalonus@salonusfirm.com
(b) County of Residence of First Listed Plaintiff Rutherford County of Residence of First Listed Defendant Rutherford
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
Justin S. Gilbert Jessica F Salonus THE TRACT OF LAND INVOLVED.
Gilbert McWherter Scott Bobbitt The Salonus Firm PLC Attorneys (If Known)
200 W. Martin Luther King Blvd 139 Stonebridge Blvd
Suite 1067 Jackson, TN 38305
Chattanooga TN 37402, 423-499-3044 731-300-0970
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
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