United States District Court, D. New Hampshire
TF by p/n/f Shannon F.
Portsmouth School District SAU 52 and Kenneth Kimber Opinion No. 2016 DNH 108
N. LAPLANTE United States District Judge.
civil rights action, brought under a theory of municipal
liability through 42 U.S.C. § 1983, turns on whether the
Portsmouth school district injured the minor plaintiff
through its policies or customs and, more to the point,
whether the plaintiff has raised a dispute of material fact
as to the existence of such a policy or custom. The
plaintiff, Shannon F., seeks to recover from the Portsmouth
School District School Administrative Unit 52
("Portsmouth"), on behalf of her minor daughter,
T.F., for a sexual assault perpetrated by one of its
employees, defendant Kenneth Kimber. She brought claims
against Portsmouth and Kimber for alleged violations of her
Fourth and Fourteenth Amendment rights, see 42 U.S.C. §
1983, as well as common-law claims for assault, battery,
negligence, and intentional and negligent infliction of
emotional distress. This court has jurisdiction over this
matter under 28 U.S.C. §§ 1331 (federal question)
and 1367 (supplemental jurisdiction).
court entered a default judgment against Kimber on October
28, 2014. Portsmouth moved for summary judgment on the civil
rights and common-law claims asserted against it. In
response, the plaintiff withdrew her common-law claims
against Portsmouth (Counts 2-7), leaving only her civil
rights violation claim (Count 8) pending. After hearing oral
argument, and for the reasons discussed below, the court
grants Portsmouth's motion for summary judgment on that
claim. The plaintiff has not raised a dispute of material
fact as to the existence of a school district policy or
custom that resulted in the violation of her Fourth or
Fourteenth Amendment rights.
Applicable legal standard
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A dispute is "genuine" if it
could reasonably be resolved in either party's favor at
trial, and "material" if it could "sway the
outcome under applicable law." Estrada v. Rhode
Island, 594 F.3d 56, 62 (1st Cir. 2010). The moving
party "bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of [the factual record] which it believes
demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). "Once the moving party has properly
supported [her] motion for summary judgment, the burden
shifts to the nonmoving party, with respect to each issue on
which [she] has the burden of proof, to demonstrate that a
trier of fact reasonably could find in [her] favor."
DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.
1997) (citing Celotex, 477 U.S. at 322-35).
"[T]he non-moving party ‘may not rest upon mere
allegation . . . but must set forth specific facts showing
that there is a genuine issue for trial.'" Braga
v. Hodgson, 605 F.3d 58, 60 (1st Cir. 2010) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)). In analyzing a summary judgment motion, the court
"views all facts and draws all reasonable inferences in
the light most favorable to the non-moving" parties.
Estrada, 594 F.3d at 62.
brief outline of the facts takes the approach described
above. Kimber, an information technology technician employed
by Portsmouth, used Facebook to send messages and naked
photographs of himself to TF, a ninth-grader at Portsmouth
High School, during the 2012-2013 school year. On February 4,
2013, Kimber sexually assaulted TF at his apartment. The
assault was reported and Kimber was arrested. Kimber
ultimately pled guilty to felonious sexual assault.
Kimber's arrest, Portsmouth put Kimber on unpaid
administrative leave, barred him from entering school
grounds, and subsequently fired him. Portsmouth also searched
his user share on its file server and found a hidden folder,
entitled "YEP, " which contained photos of
individuals, including Kimber himself, in various stages of
through her parent and next friend, Shannon F, brought this
suit against Kimber and Portsmouth. Kimber defaulted.
Portsmouth then moved for judgment on the pleadings. Given
the nature of the motion -- incorporating, as it did, facts
outside of those recited in the complaint -- the court
converted that motion to one for summary judgment and
subsequently denied it without prejudice in light of the
plaintiff's request for time to conduct discovery under
Fed.R.Civ.P. 56(d). See Order of June 19, 2015 (document no.
28). That discovery having been conducted,
Portsmouth moved for summary judgment.
initial matter, the plaintiff has voluntarily dismissed all
but one of her claims against Portsmouth. Specifically, she
"does not object to the dismissal of Counts Two through
Seven as to defendant [Portsmouth]." Obj. (document no.
43) at 1. This concession resolves the plaintiff's common
law claims against the school district. The court
accordingly dismisses, with prejudice, counts two through
seven of the complaint as against Portsmouth.
plaintiff's only claim remaining against Portsmouth,
then, is Count 8 -- an alleged violation by Portsmouth of
T.F.'s Fourth and Fourteenth Amendment rights under a
theory of municipal liability. See 42 U.S.C. § 1983;
Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658, 690-91 (1978). Under Monell
and its progeny, "[l]ocal governing bodies . . . can be
sued directly under § 1983 for monetary, declaratory, or
injunctive relief" for alleged constitutional violations
arising from "a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by that
body's officers" or a "governmental
‘custom' even though such a custom has not received
formal approval through the body's official
decisionmaking channels." Id. A plaintiff
seeking "to impose liability on local governments under
§ 1983 must prove that ‘action pursuant to
official municipal policy' caused their injury."
Connick v. Thompson, 563 U.S. 51, 60 (2011)
(quoting Monell, 436 U.S. at 691).
The plaintiff must also demonstrate that, through its
deliberate conduct, the municipality was the "moving
force" behind the injury alleged. That is, a plaintiff
must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct
causal link ...