BLUEFIELD – A federal judge partially denied a motion to dismiss in a lawsuit against the Monroe County Board of Education alleging a Kindergarten student was sexually assaulted by a high school student.

District Judge David A. Faber granted the defendant’s motion to dismiss on the plaintiffs’ Title IX claims, but denied the motion to dismiss on their other claims, according to the Oct. 18 memorandum opinion and order.

“Given that defendant fails to offer any other reason why the Dunlaps might not pursue such claims on their own behalf, the motion to dismiss on these claims is denied,” Faber wrote. “Defendant is, however, free to seek dismissal of those claims via a motion for summary judgment.”

On Nov. 30, Robert Dunlap and Lynda Dunlap filed the lawsuit against Monroe County Board of Education in the U.S. District Court for the Southern District of West Virginia.

The Dunlaps claim K.S., Lynda Dunlap’s biological paternal grandchild, was six years old and a Kindergarten student at Peterstown Elementary School. During the 2015-16 school year, K.S. was transported to school on a bus operated by Richard Riffe, an employee of the school board.

B.B., a 15-year-old student, also rode the bus that K.S. rode.

On Jan. 12, 2016, Robert Dunlap met K.S. at the bus stop near their hope, as he usually did at the end of the day, and he noticed that K.S. did not have his coat fastened and offered to help him fasten it, according to the suit.

The Dunlaps claim K.S. also asked if Robert Dunlap would button and zip up his pants and when he asked why K.S.’s pants were unzipped, K.S. indicated that he and B.B. had been playing a new “doctor” game.

Later that evening, Robert Dunlap called an acquaintance who had been the driver of the bus during the first semester of the school year and the former bus driver identified B.B. and advised him to discuss the matter with Lisa Mustain, the principal at James Monroe High School.

The Dunlaps claim the next day, they reported the incident to Mustain and an appointment was made for K.S. to be interviewed by a child abuse expert.

On Jan. 14, 2016, K.S. was interviewed and disclosed that B.B. had sexually assaulted him on many occasions by performing oral sex on him and by fondling and groping him, according to the suit.

The Dunlaps claim the bus is equipped with video surveillance cameras and, the videos corroborated statements made by K.S. to the Dunlaps and to the forensic interviewer.

Another student who rides the bus also gave a statement to law enforcement or employees of the defendant describing inappropriate behavior of B.B. toward K.S. and, upon information and belief, B.B. admitted and confessed to certain acts of sexual assault of K.S., according to the suit.

The Dunlaps claim B.B. was charged via a juvenile petition with one count of sexual assault in the first degree and one count of sexual abuse in the first degree. B.B. pled guilty to one count of sexual abuse in the first degree as a juvenile offender and was sentenced to a rehabilitation center, where his stay will likely be shorter than one year.

The defendant failed to provide law enforcement with evidence that may have resulted in a more severe punishment and, upon information and belief, at least one of B.B.’s parents is employed by the defendant.

The defendant took inadequate measures to prevent future sexual abuse. Riffe failed to seat younger children in front and keep older children away from them and failed to stay on the bus at all times children were present. Riffe also allowed children to move around and change seats and generally ignored the behavior of the students on the bus, according to the suit.

The Dunlaps are seeking compensatory damages. They are being represented by Weldon Mark Burnette of Mark Burnette PA; and Jeffrey S. Rodgers.

U.S. District Court for the Southern District of West Virginia case number: 1:16-cv-11535

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