Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 1 of 17 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

B.E., an infant under the age of eighteen (18) individually and by and through STEPHEN ENDICOTT and SHARON ENDICOTT, individually and as next-friends to the infant, B.E., Plaintiffs,

v.

2:11-cv-0679 CIVIL ACTION NO._________________

MOUNT HOPE HIGH SCHOOL, a secondary education institution; MIKE HUTCHINS, individually and in his capacity as principal of Mount Hope High School; LEAH HUTCHINS, individually and in her capacity as vice-principal of Mount Hope High School; BO MORRISON, individually and as athletic coach for Mount Hope High School; LINDA NEVI, individually and in her capacity as a teacher and athletic coach for Mount Hope High School; THE BOARD OF EDUCATION OF FAYETTE COUNTY, WEST VIRGINIA, a county educational governing entity; THE WEST VIRGINIA DEPARTMENT OF EDUCATION, a State educational governing entity, Defendants.

COMPLAINT I. INTRODUCTION This is an action for Damages and Civil Rights Violations sustained by B.E., a female citizen of the United States, against Defendants, MOUNT HOPE HIGH SCHOOL, a secondary educational institution, MIKE HUTCHINS, individually, and in his capacity as principal of Mount Hope High School, LEAH HUTCHINS, individually and in her

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 2 of 17 PageID #: 2 2 capacity as vice-principal of Mount Hope High School, BO MORRISON, individually and as an athletic coach for Mount Hope High School, LINDA NEVI, individually and in her capacity as a teacher and athletic coach for Mount Hope High School, THE BOARD OF EDUCATION OF FAYETTE COUNTY, WEST VIRGINIA, a county educational governing entity, and THE WEST VIRGINIA DEPARTMENT OF EDUCATION, a State educational governing entity. Defendants MOUNT HOPE HIGH SCHOOL, a secondary education institution, MIKE HUTCHINS, individually and in his capacity as principal of Mount Hope High School, LEAH HUTCHINS, individually and in her capacity as principal of Mount Hope High School, BO MORRISON, individually and as an athletic coach for Mount Hope High School, and LINDA NEVI, individually and in her capacity as teacher and athletic coach for Mount Hope High School, and THE BOARD OF EDUCATION OF FAYETTE COUNTY, WEST VIRGINIA, a county educational governing entity, and THE WEST VIRGINIA DEPARTMENT OF EDUCATION, a State educational governing entity are: (1) directly responsible, pursuant to West Virginia tort laws, for the illegal and unlawful conduct of certain student athletes that were enrolled at Mount Hope High School at all times material and relevant to the above-styled action; (2) in direct violation of Title IX (20 U.S.C. 1681 et seq.); and (3) in direct violation of 42 U.S.C. 1983. II. JURISDICTION This action is brought pursuant to (1) various West Virginia State tort law claims; (2) Title IX (20 U.S.C. 1681 et seq.); and (3) 42 U.S.C. 1983.

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 3 of 17 PageID #: 3 3 The jurisdiction of this Court is predicated upon 28 U.S.C. 1343; 28 U.S.C. 1331; 28 U.S.C. 1367(a); and 42 U.S.C. 1983.

III. THE PARTIES (A) THE PLAINTIFFS 1. Plaintiff B.E. is an infant under the age of eighteen (18), is a resident of Fayette County, West Virginia, and at all times material and relevant to allegations of this complaint, was a resident of Fayette County and/or Raleigh County, West Virginia, within the Southern District of West Virginia, and a citizen of the United States; 2. Plaintiff B.E. is represented by and through her next friends, STEPHEN ENDICOTT and SHARON ENDICOTT, who at all times material and relevant to allegations of this complaint, were residents of Fayette County and/or Raleigh County, West Virginia, within the Southern District of West Virginia, and citizens of the United States; 3. Plaintiff STEPHEN ENDICOTT brings this action individually, as set forth more fully below; 4. Plaintiff SHARON ENDICOTT brings this action individually, as set forth more fully below.

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 4 of 17 PageID #: 4 4 (B) THE DEFENDANTS 5. At all times material and relevant herein, MOUNT HOPE HIGH SCHOOL is a secondary educational institution located in Fayette County, West Virginia, and is subject to the venue and jurisdiction of this Court; 6. At all times material and relevant herein, Defendant MIKE HUTCHINS is subject to the venue and jurisdiction of this Court and is sued individually and in his official capacity as Principal of Mount Hope High School; 7. At all times material and relevant herein, Defendant LEAH HUTCHINS is subject to the venue and jurisdiction of this Court and is sued individually and in her official capacity as Vice-Principal of Mount Hope High School; 8. At all times material and relevant herein, Defendant BO MORRISON is subject to the venue and jurisdiction of this Court and is sued individually and in his official capacity as athletic coach for Mount Hope High School; 9. At all times material and relevant herein, Defendant LINDA NEVI is subject to the venue and jurisdiction of this Court and is sued individually and in her official capacity as teacher and athletic coach for Mount Hope High School; 10. At all times material and relevant herein, Defendant THE BOARD OF EDUCATION OF FAYETTE COUNTY, WEST VIRGINIA, is subject to the venue and jurisdiction of this Court; 11. At all times material and relevant herein, Defendant THE WEST VIRGINIA DEPARTMENT OF EDUCATION, is subject to the venue and jurisdiction of this Court.

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 5 of 17 PageID #: 5 5 IV. FACTUAL ALLEGATIONS RELEVANT TO ALL COUNTS 12. On November 12, 2010, Plaintiff B.E., the captain of Defendant, MOUNT HOPE MIDDLE SCHOOLs cheerleading squad, was required to stay after school to obtain cheerleading uniforms for her team, from the cheerleading coach, Defendant LINDA NEVI; 13. Because Defendant, LINDA NEVI, took an inordinately long time in assembling the cheerleading uniforms, Plaintiff B.E. missed her regular school bus ride home; 14. Plaintiff B.E. informed staff members located in Defendant, MOUNT HOPE HIGH SCHOOLs main office that the school bus did not wait for her and that, through no fault of her own, she missed her bus ride home; 15. Plaintiff B.E. did not have a cellular phone to be able to contact her parents about being stranded at the school building and the need to be picked up from school by her parents; 16. After informing staff members that she was stranded at the school building because the school bus had already departed, Plaintiff B.E. attempted to call Plaintiffs, STEPHEN ENDICOTT and SHARON ENDICOTT, to secure the ride home; 17. The staff member in Defendant, MOUNT HOPE HIGH SCHOOLs Main office refused Plaintiff B.E.s request to use the schools telephone to call her family to secure a ride home; 18. Immediately after being refused access to the phone, Plaintiff B.E. went to the schools gymnasium to find fellow student, D.H., to borrow his cellular phone;

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 6 of 17 PageID #: 6 6 19. D.H. was engaging in basketball practice at the time Plaintiff B.E. obtained D.H.s cellular phone; 20. Plaintiff B.E. called home and advised her family members she would ride home with D.H.s parents when they picked D.H. up from basketball practice; 21. Plaintiff B.E. attempted to find a safe location inside the school building to await her ride home; 22. Plaintiff B.E. returned to Defendant, MOUNT HOPE HIGH SCHOOLs main office and found the that staff members gone and the office closed; 23. Plaintiff B.E. returned to the schools gymnasium to await her ride home; 24. Plaintiff B.E. was confronted by Defendant BO MORRISON, the basketball coach for MOUNT HOPE HIGH SCHOOL, who then told Plaintiff B.E. that she could not stay in the gymnasium during basketball practice; 25. While sitting outside the gymnasium, Plaintiff B.E. was confronted by various male Mount Hope High School student athletes; 26. On November 12, 2010, the male student athletes ages ranged from sixteen (16) to seventeen (17) years old, and Plaintiff B.E. was thirteen (13) years old; 27. Prior to November 12, 2010, one or more of the male athletes had exhibited misconduct in school and also exhibited and engaged in predatory and sexual behavior towards women in general and female students in particular, of which misconduct and behavior Defendant MOUNT HOPE HIGH SCHOOL and its officials had received actual notice; 28. The student athletes forced Plaintiff B.E. to a room commonly used by students at Mount Hope High School to engage in sexual acts;

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 7 of 17 PageID #: 7 7 29. In this room, the student athletes raped and physically and sexually assaulted Plaintiff B.E. while another female juvenile was present; 30. After being raped and physically and sexually assaulted, Plaintiff B.E. returned to sitting outside the gymnasium to wait for the ride home with fellow student D.H.; 31. D.H. finished basketball practice and found Plaintiff B.E. crying and sitting with the female juvenile who was present during the rape and physical and sexual assault; 32. Soon thereafter, Plaintiff B.E. confided in D.H. the rape and physical and sexual assault that occurred on November 12, 2010; 33. D.H. informed his mother, a nurse, of Plaintiff B.E.s statements and an appointment at Beckley Appalachian Regional Hospital was set for a medical examination of Plaintiff B.E.; 34. Plaintiff B.E.s medical examination was performed on November 14, 2010; 35. On November 12, 2010, Defendants, and each of them failed to properly supervise students and/or to provide a safe school environment, resulting in Plaintiff B.E.s rape and physical and sexual assault on school grounds; 36. Despite having actual knowledge of Plaintiff B.E.s rape and physical and sexual assault at Mount Hope High School, Defendants, and each of them, failed to recognize the rape and physical and sexual assault perpetrated upon Plaintiff B.E. and failed to take prompt and effective remedial action calculated to prevent reoccurrence of the act and to set forth a safe school environment in accordance with Title IX (20 U.S.C. 1681 et seq. ) and 42 U.S.C. 1983;

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 8 of 17 PageID #: 8 8 37. Due to the failure of the Defendants, and each of them, to take prompt and effective remedial action, Plaintiff B.E. was unable to return to her classes at Mount Hope High School due to the threatening, humiliating, abusive, unsafe, and hostile environment at Mount Hope High School; 38. Due to the negligent, reckless, wanton and intentional conduct of Defendant, and each of them, Plaintiff B.E. could not return to Mount Hope High School, was forced to leave Fayette County and was forced to enroll in another school district; 39. Failure of the Defendants, and each of them, to act on Plaintiff B.E.s behalf following Defendants acquisition of actual knowledge of the rape and physical and sexual assault upon Plaintiff B.E. constitutes discrimination against Plaintiff B.E. based upon sex; 40. Defendants, and each of them, have failed to follow protocol in accordance with Title IX (20 U.S.C. 1681 et seq.) and 42 U.S.C. 1983 with regard to acts of rape and physical and sexual assault on school grounds; 41. The immunity provisions of West Virginia Code 29-12A-1 et seq. do not apply to Defendants in this case.

GROUND ONE NEGLIGENT SUPERVISION 42. Plaintiffs, and each of them, re-allege all allegations heretofore stated and incorporate them by reference herein; 43. Defendants, and each of them, were negligent in, and are liable for, failing to adequately supervise Plaintiff B.E. and to provide a safe environment, prior to,

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 9 of 17 PageID #: 9 9 and during, the rape and physical and sexual assault of Plaintiff B.E., and the Defendants negligent supervision of Plaintiff B.E. and failure to provide safe environment for Plaintiff B.E. resulted in the rape and physical and sexual assault of Plaintiff B.E. on Mount Hope High Schools campus grounds; 44. As a result of Defendants negligence in their lack of adequate supervision of Plaintiff B.E. and Defendants negligence in their failure to maintain a safe school environment, Plaintiff B.E. has suffered past, present, and future pain and physical injuries, psychological and emotional pain, injuries and anguish; humiliation and embarrassment; and damages in the form of medical bills, psychological counseling and therapy expenses; lost future earnings, impaired capacity to earn; loss of educational opportunities, negative impact on Plaintiff B.E.s entire education, educational choices, and career options.

GROUND TWO NEGLIGENCE 45. Plaintiffs, and each of them, re-allege all allegations heretofore stated and incorporate them by reference herein; 46. Defendants, and each of them, engaged in negligent conduct, resulting in the rape and physical and sexual assault of Plaintiff B.E. inside the Mount Hope High School building; 47. Defendants, and each of them, engaged in negligent conduct, resulting in threatening, humiliating, abusive, unsafe, and hostile environment at Mount Hope High School, prior to, during, and following the physical assault, rape and sexual

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 10 of 17 PageID #: 10 10 assault of Plaintiff B.E., forcing Plaintiff B.E. from Mount Hope High School, and forcing Plaintiff B.E. to enroll in another school district; 48. As a result of Defendants negligence, Plaintiff B.E. suffered past, present, and future physical pain and injuries; psychological and emotional pain, injuries, and anguish; humiliation and embarrassment; and damages in the form of medical bills, psychological counseling and therapy expenses; lost future earnings, impaired capacity to earn, loss of educational opportunities; negative impact on Plaintiff B.E.s entire education, educational choices, and career options.

GROUND THREE WILLFUL, WANTON, AND RECKLESS CONDUCT 49. Plaintiffs, and each of them, re-allege all allegations heretofore stated and incorporate them by reference herein; 50. Defendants, and each of them, engaged in willful, wanton, and reckless conduct, resulting in the rape and physical and sexual assault of Plaintiff B.E. inside the Mount Hope High School building; 51. Defendants, and each of them, engaged in willful, wanton, and reckless conduct, resulting in threatening, humiliating, abusive, unsafe, and hostile environment at Mount Hope High School, prior to, during, and following the physical assault, rape and sexual assault of Plaintiff B.E., forcing Plaintiff B.E. from Mount Hope High School, and forcing Plaintiff B.E. to enroll in another school district; 52. As a result of Defendants willful, wanton, and reckless conduct, Plaintiff B.E. has suffered past, present, and future physical pain and injuries; psychological and

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 11 of 17 PageID #: 11 11 emotional pain, injuries and anguish; damages, in the form of medical bills, psychological counseling and therapy expenses; lost future earnings, impaired capacity to earn, loss of educational opportunities; negative impact on Plaintiff B.E.s entire education, educational choices, and career options.

GROUND FOUR INTENTIONAL AND RECKLESS INFLICTION OF EMOTIONAL DISTRESS 53. Plaintiffs, and each of them, re-allege all allegations heretofore stated and incorporate them by reference herein; 54. Defendants, and each of them, engaged in willful, wanton, and reckless conduct, resulting in the rape and physical and sexual assault of Plaintiff B.E., inside the Mount Hope High School building; 55. As a result of Defendants willful, wanton, and reckless conduct, Plaintiff B.E., Plaintiff STEPHEN ENDICOTT and Plaintiff SHARON ENDICOTT, all suffered severe emotional injuries, distress and discomfort;

GROUND FIVE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 56. Plaintiffs, and each of them, re-allege all allegations heretofore stated and incorporate them by reference herein; 57. Defendants, and each of them, engaged in negligent conduct resulting in the rape and physical and sexual assault of Plaintiff, B.E., inside the Mount Hope High School building;

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 12 of 17 PageID #: 12 12 58. Defendants negligent conduct caused Plaintiff B.E., Plaintiff STEPHEN ENDICOTT and Plaintiff SHARON ENDICOTT, and each of them, severe emotional injuries, distress and discomfort;

GROUND SIX VIOLATION OF TITLE IX 59. Plaintiffs, and each of them, re-allege all allegations heretofore stated and incorporate them by reference herein; 60. The acts hereinbefore alleged constitute a violation of Title IX (20 U.S.C. 1681 et seq.), and Defendants, and each of them, engaged in conduct in violation of Title IX (20 U.S.C. 1681 et seq.), and are liable pursuant to Title IX (20 U.S.C. 1681 et seq.); 61. Defendants, MOUNT HOPE HIGH SCHOOL, THE BOARD OF EDUCATION OF FAYETTE COUNTY and THE WEST VIRGINIA DEPARTMENT OF EDUCATION, engaged in conduct in violation of Title IX (20 U.S.C. 1681 et seq.), and are liable for the failure to follow policies and procedures in compliance with Title IX (20 U.S.C. 1681 et seq.); 62. Defendants, MOUNT HOPE HIGH SCHOOL, THE BOARD OF EDUCATION OF FAYETTE COUNTY and THE WEST VIRGINIA DEPARTMENT OF EDUCATION, engaged in conduct in violation of Title IX (20 U.S.C. 1681 et seq.), and are liable for failing to take prompt and effective remedial action in response to the physical and sexual assault and rape of Plaintiff B.E. in compliance with Title IX (20 U.S.C. 1681 et seq.);

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 13 of 17 PageID #: 13 13 63. Defendants, MOUNT HOPE HIGH SCHOOL, THE BOARD OF EDUCATION OF FAYETTE COUNTY, and THE WEST VIRGINIA DEAPRTMENT OF EDUCATION, engaged in conduct in violation of Title IX (20 U.S.C. 1681 et seq.), and are liable for failing to notify Plaintiff B.E. that her rape and sexual assault were covered by Title IX (20 U.S.C. 1681 et seq.) and that she was afforded protection thereunder; 64. Defendants, MOUNT HOPE HIGH SCHOOL, THE BOARD OF EDUCATION OF FAYETTE COUNTY, and THE WEST VIRGINIA DEPARTMENT OF EDUCATION, engaged in conduct in violation of Title IX (20 U.S.C. 1681 et seq.), and are liable for being deliberately indifferent to the rape and physical and sexual assault of Plaintiff B.E., and for their intentional failure to protect Plaintiff B.E. from further harassment and humiliation; 65. As a result of Defendants violation of Title IX (20 U.S.C. 1681 et seq.), Plaintiff B.E. suffered past, present, and future physical pain and injuries; psychological and emotional pain, injuries, and anguish; humiliation and embarrassment; and damages in the form of medical bills, psychological counseling and therapy expenses, lost future earnings, impaired capacity to earn; loss of educational opportunities; negative impact on Plaintiff B.E.s entire education, educational choices, and career options.

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 14 of 17 PageID #: 14 14 GROUND SEVEN VIOLATION OF 42 U.S.C. 1983 66. Plaintiffs, and each of them, re-allege all allegations heretofore stated and incorporate them by reference herein; 67. The acts hereinbefore alleged constitute a violation of 42 U.S.C. 1983, and Defendants, MIKE HUTCHINS, LEAH HUTCHINS, BO MORRISON, and LINDA NEVI, engaged in conduct in violation of 42 U.S.C. 1983, and are liable individually, under 42 U.S.C. 1983, for their failure to follow policies and procedures to ensure compliance with Title IX (20 U.S.C. 1681 et seq.), and for discrimination on the basis of sex; 68. The acts hereinbefore alleged constitute a violation of 42 U.S.C. 1983, and Defendants, MIKE HUTCHINS, LEAH HUTCHINS, BO MORRISON and LINDA NEVI, engaged in conduct in violation of 42 U.S.C. 1983, and are liable individually, under 42 U.S.C. 1983, for their deliberate indifference towards Plaintiff B.E. by allowing student athletes with known background of violent and sexual misconduct in school and predatory behavior towards women in general and female students in particular to remain at Mount Hope High School, said deliberate indifference leading to the rape and physical and sexual assault of Plaintiff B.E.; 69. Defendants MIKE HUTCHINS, LEAH HUTCHINS, BO MORRISON, and LINDA NEVI, engaged in conduct in violation of 42 U.S.C. 1983, and are liable individually, pursuant to 42 U.S.C. 1983, for denying Plaintiff B.E. equal

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 15 of 17 PageID #: 15 15 protection of the laws to victims of student-on-student rape and physical and sexual assault; 70. As a result of Defendants violation of 42 U.S.C. 1983, Plaintiff B.E. suffered past, present, and future physical pain and injuries, psychological and emotional pain, injuries, and anguish; humiliation and embarrassment; and damages in the form of medical bills, psychological counseling and therapy expenses; loss of future earnings, impaired capacity to earn; loss of educational opportunities; negative impact on Plaintiff B.E.s entire education, educational choices, and career options.

V. PRAYER FOR RELIEF WHEREFORE, your Plaintiffs, and each of them, jointly and severally pray for the following relief: a. That injunctive relief be awarded Plaintiffs by ordering Defendants, and each of them to implement policies and procedure to protect students like Plaintiff B.E. from student-on-student rape and sexual assault, or harassment prohibited by Title IX (20 U.S.C. 1681 et seq.); b. That the Plaintiffs, and each of them, be awarded a sum sufficient to compensate them for past, present and future medical, psychological, psychiatric, counseling, therapy, educational expenses incurred and to be incurred as a result of physical and emotional injuries sustained by the Plaintiffs;

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 16 of 17 PageID #: 16 16 c. That the Plaintiffs, and each of them, be awarded a sum sufficient to compensate them for the past, present, and future pain and discomfort suffered as a result of injuries sustained; d. That the Plaintiffs, and each of them, be awarded a sum sufficient to compensate them for past, present, and future permanent injury, loss of wages, if applicable, diminished earning capacity, pain and suffering, humiliation and embarrassment, lost future earnings, impaired educational choices and career options, emotional distress, and the loss of the enjoyment of life; e. That the Defendants, and each of them, be responsible for all Court costs and attorneys fees associated with this action; f. That the Plaintiffs, and each of them, be awarded punitive damages for the grossly wanton, outrageous, and reckless conduct of Defendants, and each of them, and the grossly wanton, outrageous, and reckless actions of Defendants, and each of them, and the negligent, intentional, and willful misconduct of Defendants, and each of them, upon a trial of this matter; g. That the Court grant such other and further relief as the Court may deem fair, just, and appropriate.

Case 2:11-cv-00679 Document 1 Filed 09/30/11 Page 17 of 17 PageID #: 17 17 PLAINTIFFS, AND EACH OF THEM, DEMAND A JURY TRIAL ON ALL ISSUES SO TRIABLE.

B.E., an infant under the age of eighteen (18) individually and by and through STEPHEN ENDICOTT and SHARON ENDICOTT, individually and as next-friends to the infant, B.E. BY COUNSEL

s/Matthew A. Victor Matthew A. Victor WV Bar ID No. 5647 VICTOR VICTOR & HELGOE LLP P.O. Box 5160 Charleston, WV 25361 Tel. (304) 346-5638 or (304) 346-3655

s/Leigh M. Boggs Lefler Leigh M. Boggs Lefler WV Bar ID No. 9252 LEFLER & BOGGS, PLLC 316 North Kanawha Street Beckley, WV 25801 Tel. (304) 929-2637

s/Christopher D. Lefler Christopher D. Lefler WV Bar ID No. 8820 LEFLER & BOGGS, PLLC 316 North Kanawha Street Beckley, WV 25801 Tel. (304) 929-2637