Elliot Brown v. Fall Mtn. School

• Court: District Court, D. New Hampshire
• Decided: February 1, 1999
• Docket: CV-97-590-B
• Status: Published

Opinion

Elliot Brown v. Fall Mtn. School CV-97-590-B 02/01/99

UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elliot W. Brown, Jr.

v. Civil No. 97-590-B

Fall Mountain Regional School Dist., et a l .

O R D E R

Defendants Terrance Dimick, Stephen Varone, and Leo

Corriveau, are alleged to be liable as supervisors. In order to

establish a claim based on 42 U.S.C. § 1983 against a supervisor

the plaintiff must demonstrate that: (1) a subordinate has

violated the plaintiff's rights under federal law; and (2) the

supervisor's conduct is affirmatively linked to the subordinate'

illegal conduct in the sense that the supervisor failed to act o

acted with deliberate indifference to the danger that the

subordinate would engaged in the illegal conduct. See Aponte

Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998).

"To demonstrate deliberate indifference, a plaintiff must show:

(1) grave risk of harm; (2) the defendant's actual or construc­

tive knowledge of that risk; and (3) his failure to take easily available measures to address the risk." Camilo-Robles v. Hovos,

151 F.3d 1, 7 (1st Cir. 1998), cert, denied, ___ S. C t . ___ , 1999

WL 16073 (1999) .

When the record is construed in the light most favorable to

the plaintiff, it would permit a reasonable fact finder to con­

clude that both elements of the supervisory liability test have

been met with respect to each of the supervising defendants.

First, the record would permit a finding that the plaintiff was

subjected to an unconstitutional assault by Orville Perkins, a

governmental official acting under color of state law, in

violation of the plaintiff's constitutional rights. Second, the

record would permit a finding that each of the supervisory

defendants acted with deliberate indifference to plaintiff's

constitutional right to be free from an unconstitutional assault

by a governmental official. In support of this point, I note

that the record would support a conclusion that (1) each

defendant exercised supervisory authority over Perkins; (2) each

defendant was aware that Perkins had allegedly harassed the

plaintiff on numerous prior occasions; and (3) each defendant

was aware that Perkins continued to harbor animosity toward the

plaintiff that might provoke further assaults. Notwithstanding this knowledge, defendants declined to take reasonable and

prudent steps to prevent defendant Perkins from having

unsupervised contact with the plaintiff under circumstances

that could lead to further assaults. Accordingly, the plaintiff

has produced sufficient evidence to permit a reasonable fact

finder to find in his favor with respect to his supervisory

liability claims.

Defendants also invoke the doctrine of gualified immunity.

A defendant will be entitled to claim gualified immunity in

response to a supervisory liability claim based on § 1983 if

(1) the subordinate's conduct did not violate plaintiff's clearly

established rights under federal law; (2) it was not clearly

established that a supervisor would be liable under the circum­

stances presented for the subordinate's illegal conduct; or (3)

the supervisor acted with objective legal reasonableness. See

Camilo-Robles, 151 F.3d at 5-6. A legal right is "clearly

established" for purposes of a gualified immunity claim where

"the contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing

violates that right." Id. at 5 n.3 (guoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987).

-3- When the record in this case is construed in the light most

favorable to the plaintiff, it will not support defendants'

qualified immunity claim. First, if the assault occurred as the

plaintiff alleges, it violated plaintiff's clearly established

constitutional right to be free from assault at the hands of

government officials. See generally, P.B. v. Koch, 96 F.3d 1298,

1302-03 (9th Cir. 1996) (denying qualified immunity to school

principle sued for assaulting students). Second, the facts

discussed above would support a finding that the supervisory

defendants engaged in conduct that clearly would subject them to

liability for their subordinate's constitutional violations.

Finally, defendants cannot claim that they acted in an objec­

tively reasonable manner if they knew what plaintiff asserts they

knew and yet failed to take reasonable and prudent steps to

shield the plaintiff from further contact with defendant Perkins.

Accordingly, I deny the supervisory defendants' motion for

summary judgment.

Plaintiff also claims that the Fall Mountain Regional School

District is liable for the consequences of Perkins' alleged

assault because it failed to properly train and supervise its

employees with respect to the investigation of harassment claims by students. To establish a failure to train and/or supervise

claim against a municipal entity such as a school district, a

plaintiff must demonstrate that (1) the failure to train or

supervise was the "moving force" behind a municipal employee's

unconstitutional action; and (2) a municipal policymaker acted

with deliberate indifference to the risk that municipal employees

would engage in unconstitutional actions if they were not trained

or supervised in the manner suggested by the plaintiff. See

Havden v. Gravson, 134 F.3d 449, 456 (1st Cir.), cert, denied,

118 S. C t . 2370 (1998).

In this case, plaintiff has failed to identify the municipal

policymaker who allegedly failed to supervise or train the

defendants. Nor has plaintiff described the training that

should have been provided to the defendants or the supervision

that the unidentified policymaker should have undertaken. Thus,

the record will not support a finding that the school district's

failure to train or supervise defendants was the moving force

behind the assaults. Finally, plaintiff has failed to allege

facts which would support a conclusion that a municipal policy­

maker acted with deliberate indifference in failing to train or

supervise defendants. Accordingly, the school district is

entitled to summary judgment with respect to plaintiff's claims against it.

The defendants' motion for summary judgment is denied with

respect to plaintiff's claims against the supervisory defendants

and granted with respect to plaintiff's claim against the school

district.

SO ORDERED.

Paul Barbadoro Chief Judge

February 1, 1999

cc: Bradford W. Kuster, Esg. Donald Gardner, Esg.

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