                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0385n.06

                                          No. 16-6316
                                                                                      FILED
                                                                                Jun 30, 2017
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

                               )
J.B.F., by and through his guardian and next
friend, Marilyn Stivers,       )
                               )
     Plaintiff-Appellant,      )
                               )
v.                             )
                                                     ON APPEAL FROM THE UNITED
                               )
                                                     STATES DISTRICT COURT FOR THE
KENTUCKY DEPARTMENT OF         )
                                                     EASTERN DISTRICT OF KENTUCKY
EDUCATION, KENTUCKY SCHOOL FOR )
THE DEAF, and SCOTT HAUN,      )
                               )
     Defendants-Appellees.


BEFORE:        DAUGHTREY, MOORE, and KETHLEDGE, Circuit Judges.

        PER CURIAM. Plaintiff J.B.F. was a student at the Kentucky School for the Deaf when

a staff member found him engaged in sexual acts with his roommate, another male student, in the

bathroom of their dormitory suite. Initially, J.B.F told school authorities that the encounter was

consensual, but after his aunt and guardian, Marilyn Stivers, found out about the incident, she

filed suit on his behalf in state court. The thrust of the complaint was that J.B.F. had been the

victim of a state-created danger when the defendants negligently exposed him to a “known

sexual deviant”—his roommate—resulting in a situation that the staff had not been adequately

trained to deal with. The case was removed to federal court by the defendants, who then filed a

motion for summary judgment on all claims: violation of equal protection under 42 U.S.C.

§ 1983, negligence, negligent training and supervision, and intentional infliction of emotional

distress.   The district court granted summary judgment on all four claims and denied the
No. 16-6316
J.B.F. v. Kentucky Department of Education et al.

plaintiff’s motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). It

is the denial of the Rule 59(e) that is now before us on appeal. We agree with the district court

that the motion was properly denied.

       As the district court pointed out, citing Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th

Cir. 2005): “A court may grant a Rule 59(e) motion to alter or amend if there is: (1) a clear error

of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a

need to prevent manifest injustice.” The district court also emphasized that a Rule 59(e) motion

cannot be used to “relitigate old matters, or to raise arguments . . . that could have been raised

prior to the entry of judgment,” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008), or

“to re-argue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374

(6th Cir. 1998). Finally, as the district court also pointed out, the motion before it “exclusively

rehashe[d] misguided and failed summary judgment arguments and regurgitate[d] rejected case

theories,” thus constituting sufficient reason to deny the motion outright.

       Nevertheless, the district court analyzed the issues raised in the motion to prove the point.

First, the district court rebuffed the plaintiff’s claim that, in granting summary judgment, the

court had overlooked various disputes of material fact. In the Rule 59(e) motion, the plaintiff

attacked the district court’s finding that the school had conducted an investigation into the

incident in question, arguing that there was no evidence of an investigation in the record. But, as

the court noted, the plaintiff had submitted a letter from defendant Haun that explicitly

acknowledged an “investigation of the reported incident.” Next, the court declined to review

evidence concerning the roommate’s alleged propensity to commit violence that, according to

the plaintiff, was “inadvertently not attached” to his motion for summary judgment. It was, the

court said, “newly submitted” rather than “newly discovered” evidence. The district court also


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No. 16-6316
J.B.F. v. Kentucky Department of Education et al.

found the evidence irrelevant because none of it “involved sexually assaultive behavior” that

would have put the school on notice of a need to protect J.B.F. from a potential sexual assault

and, thus, would not have affected the grant of summary judgment to the defendants. The

plaintiff also took issue with the district court’s alleged “determination that the sexual acts were

consensual.” However, the record establishes that in evaluating the evidence in the light most

favorable to the plaintiff when granting summary judgment to the defendants, the court had

assumed that “the interaction was non-consensual.”

        In addition to challenging the factual basis for the district court’s determinations, the

plaintiff also argued that the court committed errors of law, for example, in failing to consider

the state-created danger doctrine of McQueen v. Beecher Community Schools, 433 F.3d 460

(6th Cir. 2006). But, the district court had reviewed the McQueen case and found it inapposite

because it utilized a due-process analysis, while the plaintiff “solely made Equal Protection

constitutional claims.” The record also fails to support the plaintiff’s argument about federal and

state immunity because it was one which the district court had already rejected. Finally, the

plaintiff challenged the district court’s ruling on the negligence claim, arguing that the court

“failed to adequately consider the special relationship doctrine” and its corresponding

“affirmative duty to act to protect [a] person who is not able to protect himself” because of

disabilities like J.B.F.’s.   However, the record establishes that the court explicitly applied the

“affirmative duty standard” requested by J.B.F. but dismissed the negligence claim because the

incident in question, viewed in the light most favorable to the plaintiff, simply was not

foreseeable and, therefore, created no affirmative duty on the defendants to prevent it.

        Finding no error in the district court’s denial of the plaintiff’s Rule 59(e) motion, we

AFFIRM.


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