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TF v. Portsmouth School District SAU 52

United States District Court, D. New Hampshire

July 12, 2016

TF by p/n/f Shannon F.
Portsmouth School District SAU 52 and Kenneth Kimber Opinion No. 2016 DNH 108


          JOSEPH N. LAPLANTE United States District Judge.

         This 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).

         The 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.

         I. Applicable legal standard

         Summary 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.

         II. Background

         This 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.

         After 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[1] and found a hidden folder, entitled "YEP, " which contained photos of individuals, including Kimber himself, in various stages of undress.

         TF, 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.

         III. Analysis

         As an 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.[2] The court accordingly dismisses, with prejudice, counts two through seven of the complaint as against Portsmouth.

         The 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 ...

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