District attorney's office responds to Ooltewah rape case lawsuit

District attorney's office responds to Ooltewah rape case lawsuit

September 2nd, 2017 by Zack Peterson in Local Regional News

Staff Photo by Dan Henry / The Chattanooga Times Free Press- 8/31/16. Attorney Curtis Bowe, right, speaks briefly about his case defending former Ooltewah High School head basketball coach Andre "Tank" Montgomery who appeared before Judge Don Poole on August 31, 2016 on charges of failure to report child sexual abuse.

Photo by Dan Henry /Times Free Press.

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Joining other state agencies, the district attorney general's office in Hamilton County has asked to be dismissed from a $6 million-plus lawsuit filed by three former Ooltewah High School employees and their wives in connection with a 2015 rape.

Because the office is a state entity and not an individual, it can't be sued under the civil rights violations that Jim Jarvis, Allard "Jesse" Nayadley and Andre Montgomery outlined in their June complaint in Chattanooga's U.S. District Court, a motion states.

The office also has sovereign immunity, which protects government officials from criminal and civil prosecution as long as they acted within the scope of their duties, Jacyln McAndrew, a lawyer with the Tennessee State Attorney General's Office, added in her Aug. 24 motion.

"This suit is barred unless Plaintiffs can demonstrate waiver or Congressional abrogation of immunity," McAndrew wrote. "Plaintiffs cannot. First, the state of Tennessee has not consented to be sued in federal court for the claims in question."

Attorney Curtis Bowe, who represents the former employees and their wives, has not yet responded to the motion. He previously said Hamilton County Schools acted on false information when suspending or transferring the men to different schools. The employees followed the district's guidelines and state law when a freshman student was raped by his basketball teammates with a pool cue during a team trip to Gatlinburg, Tenn., in December 2015, Bowe argued.

Montgomery found the 15-year-old bleeding in a basement bedroom and rushed him to the hospital for emergency surgery. But he never alerted authorities, with medical staff reporting the assault instead, according to the Gatlinburg Police Department. Criminal Court Judge Don Poole dismissed Montgomery's four counts of failure to report child sexual abuse in December, saying under the state statute Montgomery was not legally required to report that incident of sexual abuse to authorities.

Various Hamilton County officials, however, contributed to the malicious prosecution of the men, Bowe argued in his 2017 suit: Former Hamilton County Schools Superintendent Rick Smith spread misinformation during press conferences and court testimony. Hamilton County District Attorney General Neal Pinkston overstepped his authority and indicted the coaches on a vaguely written law for an incident that happened in a different county. And the Tennessee Department of Children's Services filed charges against Montgomery and Nayadley, alleging a lack of supervision and failure to report child abuse. Because those charges are pending, Montgomery can't work as a teacher or coach within the school system, Bowe said.

The lawsuit alleges negligence, age and race discrimination, wrongful termination, defamation, fraud, and breach of fiduciary duty in connection with the rape case.

The other agencies denied responsibility in their responses, citing sovereign immunity and calling the former employees' claims frivolous. The Department of Children's Services said the one-year time frame in which the coaches could file a complaint — known as the statute of limitations — had expired. In a previous motion, Bowe said the men actually have four years to do so.

In addition to this litigation, the victim filed a federal lawsuit against Jarvis, Nayadley and Montgomery, including the board of education, late last year in connection with the attack. Another victim, also sexually assaulted by his teammates during the trip, filed a federal lawsuit in the case.

Both lawsuits are moving toward trial next year, and claim that Hamilton County Schools and the three men ignored signs of abuse and allowed a culture of bullying and sexual assault to fester at Ooltewah, leaving students unprotected. The three former Ooltewah employees responded to both lawsuits last year, claiming they should not be held liable for the assaults and placing the blame on the students who were convicted in connection with the attack.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.

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