Free Memorandum - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13

Edward D. Fitzhugh, #007138 LAW OFFICE OF EDWAR D. FITZHUGH P.O. Box 24238 Tempe, Arizona 85288-4238 (480) 752-2200 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JOE RAMIREZ and ANNA RAMIREZ, Individually and as Parents and Legal Guardians of JOSE RAMIREZ; Plaintiffs, v. GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205; JOHN DOE AND JANE DOE I-X; ABC CORPORATIONS I-X; and XYZ PARTNERSHIP I-X, Defendants. No. CIV 03-0060 PHX ROS

PLAINTIFFS' SUPPLEMENT TO ITS RESPONSE TO MOTION FOR SUMMARY JUDGMENT

14 15 16 17 18 19 20

COME NOW, Plaintiffs and pursuant to the Court Order of January 5, 2006, submit this supplemental memorandum in response to questions raised by the Court. I. WHICH CLAIMS SURVIVE THE COURT'S JULY 17, 2004, RULING On July 17, 2004, the Court ruled on Defendants' Motion for Summary Judgment. The basis of Defendants' Motion was that Plaintiff parents, Joe and Anna Ramirez, had not filed their lawsuit within the one year statutorily prescribed period. This Court found that the

21

parents' State-based claims had not been filed within the one-year period. However, the Court
22 23 24 25 26

explicitly ruled that the parents' civil rights claims were timely filed and could proceed. (July 17, 2004 Order pp.6-7).

1

Case 2:03-cv-00060-ROS

Document 95

Filed 01/20/2006

Page 1 of 4

1 2 3 4

Plaintiff Jose Ramirez, Joe and Anna Ramirez' son, is mentally handicapped with Downs Syndrome. Defendants' Motion for Summary Judgment never addressed any of Jose Ramirez' claims, thus his state and federal claims continue. With regard to any claim against Apollo High School, the parties previously agreed that

5

the Apollo claim would be dismissed. To provide a brief background, after Jose's assault came
6 7 8 9 10 11 12 13

to light, his parents requested that Jose be transferred from Cortez High School to Apollo High School. During a school assembly, Jose became agitated when he saw one of the perpetrators, who was also attending Apollo. There was never a second assault. Plaintiffs' counsel and former defense counsel had agreed this was not a claim. II. RAMIREZ II As described in Plaintiffs' May 20, 2004, Motion to Amend, it was only during the deposition of Ruben Ortega that Plaintiffs learned that two Cortez High School teachers, and

14

the vice-principal, had learned of the assault on Jose the day it occurred; and, that, in violation
15 16 17 18 19 20 21

of State law, the educators did not report the assault to the authorities or inform Jose's parents. Jose's parents were never told about the assault; and Jose was too frightened to tell them what had happened to him. The young men that physically and sexually assaulted Jose threatened that if he told anyone, they would kill his parents and burn down his house. Approximately six months after the assault, in March 2001, after suffering persistent problems and pain with a "rectal rash," Jose finally told his parents of the assault.

22

Mr. and Mrs. Ramirez confronted the school personnel who told them this was the first
23 24 25 26

time that they had been made aware of the assault. As previously pleaded, based on the testimony of Ruben Ortega, Plaintiffs filed their Motion to Amend. The court ruled that it was not persuaded by Mr. Ortega's testimony and

2

Case 2:03-cv-00060-ROS

Document 95

Filed 01/20/2006

Page 2 of 4

1 2 3 4

denied the Motion to Amend. In the subsequent depositions of the two other perpetrators, they described in detail how the teachers and administrators learned of the assault on the day it occurred; the teachers' reactions; as well as the fact that each of the boys was individually interviewed the day of the assault and described to teachers and administrators what happened

5

(Ex. Plaintiffs' Response to Motion to Dismiss filed in Ramirez II).
6 7 8 9 10 11 12 13

Plaintiffs respectfully disagreed with the Court's action in weighing of the validity of the deposition testimony of a witness to decide whether the pleadings could be amended. Denial of the Motion to Amend to add new claims and new parties was not a decision on the merits, nor was the denial with prejudice. Rather than pursue the issue through this action, Plaintiffs' counsel filed a separate lawsuit (Ramirez II). Defendant filed a Motion to Dismiss in Ramirez II, before Magistrate Mathis, citing this court's ruling. After discussion about the case history, and specifically addressed the reasons that Plaintiffs' counsel filed Ramirez II,

14

Magistrate Mathis denied the Motion to Dismiss and allowed the matter to proceed as a
15 16 17 18 19 20 21

separate lawsuit. Magistrate Mathis advised that she would consult with this Court regarding consolidation. III. CONCLUSION This case is disturbing on many levels. As parents, we all have great respect and consideration for school personnel, yet, it is impossible to ignore the fact that four young men independently confirmed that Jose Ramirez was physically and sexually assaulted. And they

22

also confirmed, independently, through sworn testimony, that the high school teachers and
23 24 25 26

administrator learned of the assault on the very day it occurred. It is undisputed that the assault was not reported to the authorities or to Jose's parents.

3

Case 2:03-cv-00060-ROS

Document 95

Filed 01/20/2006

Page 3 of 4

1 2 3 4

Although the young men who testified are mentally handicapped, their level of mental ability is quite sufficient to allow them to be included in the mainstream program at Cortez High School. Defendants continually point to the mental disabilities of these young men in order to cast doubt on their veracity. The real question should be: If they are so mentally

5

handicapped, how could they, and why would they, jointly concoct such a fabrication?
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

RESPECTFULLY SUBMITTED this ____ day of January, 2006.

/s/ Edward D. Fitzhugh Edward D. Fitzhugh Attorney for Plaintiffs

____

I hereby certify that on January 20, 2006, I electronically transmitted the foregoing to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: J. Steven Sparks, Esq. Sanders & Parks, P.C. 3030 N. Third Street, Ste. 1300 Phoenix, Arizona 85012-3099 Attorneys for Defendants

__/s/S.J. Odneal_____
22 23 24 25 26

4

Case 2:03-cv-00060-ROS

Document 95

Filed 01/20/2006

Page 4 of 4