____________________________________________

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE
_______________________________

J.M., BY AND THROUGH HIS PARENTS, A.M. AND D.M.,

Plaintiffs,

V.

RUTHERFORD COUNTY BOARD OF EDUCATION

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.

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for his injuries and prevent such future injuries to him and to others. As explained further

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

under Section 504 and Title II of the ADA.

II. PARTIES, JURISDICTION, AND VENUE

2. J.M., by and through his Parents, A.M. and D.M., live in Mt. Juliet, Tennessee in

Rutherford County.

3. Rutherford County Board of Education operates the public educational system

within Rutherford County. As such, it is charged with ensuring an abuse-free educational

environment to students in Rutherford County, including J.M. It receives federal

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

equal participation and treatment of children with disabilities.

4. The Court’s jurisdiction is invoked pursuant to 28 U.S.C. §1331 and through 28

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

Rehabilitation Act of 1973, 29 U.S.C. §794.

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.

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6. This is an action for personal injury damages, not for educational programming or

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

non-disabled children. Id.

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

is non-verbal), motor abilities, and learning.

8. J.M.’s parents have seen him experience a number of serious, avoidable, painful

injuries—both emotional and physical—at the school.

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

brick wall of the bathroom, knocking a tooth out.

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.

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11. In September of 2018, J.M. entered eighth grade. Rutherford County hired a large

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

guilty in 2010 to driving under the influence.

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

and reported what she saw.

13. Rutherford County merely took the report and left the man in place. It did not

advise the parents.

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

what she witnessed to the principal.

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

report to the parents.

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17. Rutherford County waited until J.M.’s parents took legal action in the form of a

protective order hearing to remove the man from its employ.

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

and/or purposeful actions by Rutherford County personnel, J.M.’s parents reasonably

determined the school is unsafe for J.M. Accordingly, J.M. has been placed on

“homebound” instruction.

20. Homebound instruction is decidedly different than regular instruction, as J.M.

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.

IV. LEGAL CLAIMS

Count I: Title IX.

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

or activity receiving Federal financial assistance.” Id.

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,

comfort, or counseling to J.M. at any time.

Case 3:19-cv-00085 Document 1 Filed 01/17/19 Page 5 of 8 PageID #: 5

23. Consequently, Rutherford County’s response, and lack thereof, to the sexual

harassment by T.M. towards J.M. constitutes negligence, gross negligence or deliberate

indifference.

Count II: Fourteenth Amendment & Section 1983.

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

policymaking authority of indifference to the rights of bodily integrity of students with

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

benefits of the services, programs or activities of a public entity, or otherwise be subjected

to discrimination. Such equal participation includes equal rights to a safe, non-abusive,

and non-hostile educational environment as students without a disability.

27. Similarly, under Section 504, J.M. enjoys equal access to education services and a

non-hostile and non-abusive educational environment.

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28. In sixth, seventh, and eighth grades, Rutherford County failed to ensure that J.M.

was treated equally by Rutherford County personnel in comparison to children without

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

suffered a hostile and harassing educational environment in which he was neglected,

abused, and unsupervised, including to the point of serious emotional and physical harm.

29. Thus, Rutherford County, through its neglect and/or deliberately indifferent

actions, failed to address discriminatory treatment, staff-person-on-student harassment,

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

deprived him of his rights under the law.

30. Plaintiffs demand a jury for all claims triable by a jury.

Wherefore, Plaintiffs request the Court issue declaratory or injunctive relief for

appropriate harassment training; appropriate hiring protocols for working with children

with intellectual disabilities; effective Title IX training in how to conduct an investigation

and engage appropriate remedial measures; effective ADA and Section 504 training;

appropriate damages for physical and emotional harm; and attorneys fees, costs, and any

other equitable or legal relief that may be appropriate.

Case 3:19-cv-00085 Document 1 Filed 01/17/19 Page 7 of 8 PageID #: 7

 Respectfully Submitted,

GILBERT McWHERTER
SCOTT BOBBITT, PLC

/Justin S. Gilbert__ ___________

JUSTIN S. GILBERT (TN Bar No. 017079)
200 W. Martin Luther King Blvd
10th Floor, Suite 1067
Chattanooga, TN 37402
Telephone: 423-499-3044
Facsimile: 731-664-1540
jgilbert@gilbertfirm.com

THE SALONUS FIRM, PLC

/s Jessica F. Salonus___________
JESSICA F. SALONUS (28158)
139 Stonebridge Boulevard
Jackson, Tennessee 38305
Telephone: (731) 300-0970
jsalonus@salonusfirm.com

ATTORNEYS FOR PLAINTIFFS

Case 3:19-cv-00085 Document 1 Filed 01/17/19 Page 8 of 8 PageID #: 8

JS 44 (Rev. 07/16) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings 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. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

J.M., by and through his parents, A.M. and D.M. Rutherford County Board of Education

(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

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability Leave Act ’ 893 Environmental Matters
Medical Malpractice ’ 790 Other Labor Litigation ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
20 U.S.C. 1681, Fourteenth Amendment 42 U.S.C. §1983, 42 U.S.C. §12101, 29 U.S.C. §794
VI. CAUSE OF ACTION Brief description of cause:
Violations of Title IX, Equal Protection Fourteenth Amendment, Section 504, ADA
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
01/17/2019 s/ Justin S. Gilbert
FOR OFFICE USE ONLY

RECEIPT # Case 3:19-cv-00085 Document

AMOUNT 1-1 Filed 01/17/19
APPLYING IFP JUDGE Page 1 of 2 PageID #: 9
MAG. JUDGE
JS 44 Reverse (Rev. 07/16)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

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.

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

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.

Date and Attorney Signature. Date and sign the civil cover sheet.

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