UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
TF by p/n/f Shannon F.
v. Civil No. 14-cv-368-JL Opinion No. 2016 DNH 108 Portsmouth School District SAU 52 and Kenneth Kimber
MEMORANDUM ORDER
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.
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.
2 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.
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.
3 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 server1 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.
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
1 As plaintiff’s counsel explained at oral argument, Kimber’s user share was a section of Portsmouth’s server accessible through Kimber’s user account, and on which he was able to store files.
4 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
2 This includes the plaintiff’s claims against Portsmouth under theories of negligence and vicarious liability for assault, battery, intentional and negligent infliction of emotional distress, and “[v]iolation of the rights otherwise guaranteed to TF, under the laws and constitutions of the State of New Hampshire and the United States.” Compl. ¶¶ 18-29.
5 ‘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 between the municipal action and the deprivation of federal rights.
Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397,
404 (1997).3
Such liability under § 1983 “can be found only ‘where the
municipality itself causes the constitutional violation at
issue. Respondeat superior or vicarious liability will not
attach under § 1983.’” Santiago v. Fenton, 891 F.2d 373, 381
(1st Cir. 1989) (quoting City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989)). Thus, “recovery from a municipality is
3 While this observation has no bearing on, and plays no role in, the court’s analysis of the plaintiff’s claim as alleged in the complaint, it is worth noting that the situation described by the facts alleged -- the sexual assault of a student by a high school staff member away from school grounds -- does not immediately or intuitively invoke notions of a civil rights violation under the Fourth and Fourteenth Amendments. Indeed, the plaintiff has not cited a single reported or unreported example of such a case and, at oral argument, plaintiff’s counsel confirmed that their research revealed no such case. This court’s research similarly found no examples. This is not to say that the plaintiff’s claim is not colorable under applicable law; rather, it is only to observe that the plaintiff’s theory has little or no precedent of record.
6 limited to acts that are, properly speaking, acts ‘of the
municipality’ -- that is, acts which the municipality has
officially sanctioned or ordered.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986).
While the court does not question the plaintiff’s good
faith in bringing this suit or advancing its arguments against
summary judgment, it struggled to some degree in identifying the
articulation of such a policy in the plaintiff’s summary
judgment briefing. It therefore held a telephone conference in
advance of oral argument, during which plaintiff’s counsel
explained that the municipal policy or custom that the plaintiff
here invokes as the basis of her Monell claim is this:
Portsmouth conspicuously failed to enforce certain existing
school district policies concerning sexual harassment or assault
and appropriate use of the school district computer systems,
thus inviting its employees -- such as Kimber -- to violate
them. See Obj. (document no. 43) at 3-4 (citing Casablanca
(Warner Bros. 1942); The Wire: Hamsterdam (HBO television
broadcast Oct. 10, 2004)). Counsel explained that this theory
amounts to “99%” of the plaintiff’s claim; she reserves “1%” for
the allegation that Portsmouth had “customs” or “de facto
policies” that harmed the plaintiff. Indeed, counsel’s candor
is appreciated as his oral explanation of these theories is
7 consistent with his briefing. The court addresses each of these
theories in turn.
1. Existing policies
The plaintiff’s briefing is not altogether clear as to
precisely which policies, guidelines, or customs she claims that
Portsmouth conspicuously failed to enforce. As best the court
can make out, they fall into two categories. The first
comprises those raised in the complaint: policies, guidelines,
or customs of monitoring Portsmouth’s employees so as to prevent
“improper sexual contact with students” and to screen,
supervise, and/or discipline its employees “for their propensity
for improper contact with students.” Compl. ¶¶ 32-33. The
second comprises those alluded to in the plaintiff’s objection
to Portsmouth’s motion for summary judgment: policies or
customs relating to proper use of district computers.
As to the first, Portsmouth has introduced evidence that,
during the 2012-2013 school year, it had policies forbidding
school employees from “engag[ing] in a physical relationship of
a sexual nature of any kind with a student of the Portsmouth
School Department regardless of the age of the student while the
student is enrolled in the school system,” see Mot. for Summary
Judgment Ex. G (document no. 42-11) at 10, and forbidding “any
employee to harass other employees, students, parents or others
8 participating in programs, services and/or activities provided
by the school board, through conduct or communication of a
sexual nature,” as defined in the policy, see id. at 12. Such
defined conduct includes, inter alia, “unwelcome sexual
advances, requests for sexual favors and other verbal, nonverbal
or physical conduct of sexual nature,” and may also “include use
of cell phones or the Internet.” Id. at 12-13. Portsmouth
having produced these policies and asserted facts as to their
enforcement,4 the burden shifts to the plaintiff to demonstrate a
dispute of material fact as to whether the school district had a
policy of conspicuously failing to enforce these policies. See
DeNovellis, 124 F.3d at 306. The plaintiff has not done so
here.
The plaintiff offers no evidence that would allow a finder
of fact to conclude that “the . . . officials responsible for
establishing final policy with respect to” sexual assault and
4 It is important to note here that the plaintiff does not challenge the substance or content of these policies as set forth or adapted. Her challenge, again, is to the school district’s capricious lack of enforcement, inviting violation. The plaintiff illustrates this challenge through allusion to the movie Casablanca, where Rick’s Café flourished despite a presumptive prohibition against gambling in Morocco, and the television series The Wire, in which police officers attempted to control illegal drug activity in Baltimore as a whole by diverting it to a section of the city, called Hamsterdam, where laws against drug possession and distribution went conspicuously unenforced.
9 harassment in the school district made “a deliberate choice” not
to enforce those policies “from among various alternatives . . .
.” Pembaur, 475 U.S. at 483. The plaintiff points only to the
fact that Kimber interacted with students in the hallways of the
school and used the school’s exercise facilities without censure
as evidence that Portsmouth conspicuously failed to enforce its
harassment or assault policies. See Obj. (document no. 43)
at 4. While the parties do not appear to dispute that Kimber
did, at times, interact with students in the hallways of the
school, or that he used the school’s exercise facilities on at
least one occasion, allegations of mere interaction with
students on school grounds, without more, does not appear to
evince a violation of these policies, much less a deliberate
choice by school district officials to permit or invite
violation. This is especially true in the absence of any
evidence that Kimber interacted with, stalked, or groomed TF, or
any other student, while in school hallways or the school’s
exercise facilities.
As to use of school district computers, Portsmouth has also
introduced evidence that, during the 2012-2013 school year, it
had policies concerning responsible and acceptable use of school
computers and the school district computer network. Mot. for
Summary Judgment Ex. G (document no. 42-11) at 1-7.
Portsmouth’s appropriate computer use policy, while reserving
10 the school district’s right to monitor network activity, does
not outline a policy of active monitoring. Rather, it “relies
on the honor of its students and staff to exercise appropriate
. . . and responsible use of computers and Internet access.”
Id. at 4. The parties do not dispute that Kimber stored
inappropriate pictures on a laptop issued by the school district
and on the school district’s network. Nor do the parties
dispute that, in doing so, Kimber violated those policies. The
plaintiff argues, rather, that the school district’s supervision
of Kimber was so lax and its failure to enforce these policies
so conspicuous as to invite him to violate them. And that
policy of failing to supervise or discipline Kimber, the
plaintiff concludes, created the environment that allowed Kimber
believe he could assault TF, also with impunity.
The plaintiff balances this argument on two pillars.
First, the plaintiff relies on the report of her expert,5 Jean
5 The plaintiff leans generally on the entirety of Ms. Heffner’s report and deposition as outlining policies and practices that Portsmouth ought to have had in place “to better protect students.” See Obj. (document no. 43) at 6. Such an approach runs afoul of the requirement that
a party asserting that a fact . . . is genuinely disputed must support the assertion by[] citing to particular parts of materials in the record . . . or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
11 Heffner, who opined that certain inadequacies in Portsmouth’s
network implementation were “directly and indirectly culpable
for the abuse of the network by . . . Kimber.”6 Heffner Report
(document no. 43-7) at 4. Without opining on the
appropriateness of the school district’s “honor system” of
enforcement set out in the policy itself, Heffner concludes
that, had Portsmouth implemented three procedures, it could have
discovered the “YEP” folder and disciplined Kimber -- or at
least watched him more closely -- at some point before he
assaulted TF. Specifically, she explains, Portsmouth failed to
“scan[] the system regularly with an IP scanner, audit[] the use
of all administrative account holders and their actions and on a
regular basis, and implement[] a robust incident response
structure.”7 Id. In her deposition, Heffner expanded on the
effect that implementing these policies and procedures would
Fed. R. Civ. P. 56(c)(1). It is incumbent on the plaintiff, not the court, to dig through Ms. Heffner’s report and deposition transcript to identify those portions supporting (or defining) the plaintiff’s position. 6 Notably, Heffner does not opine that those inadequacies were culpable for the abuse of T.F. by Kimber. 7 She also opined that the school district should have used an “email filter to restrict the proliferation of inappropriate photographs in email by restricting certain attachments based on their format such as .jpg which is the most common format used in phones and cameras.” Heffner Report (document no. 43-7) at 3. The applicability of this recommendation to this case is undermined by the lack of any evidence suggesting that Kimber sent or received any inappropriate photographs by email.
12 have had on the Kimber’s use of Portsmouth’s server.
Implementing IP scanners would have allowed district IT
supervisors to see the “YEP” folder, even though it was hidden.
Heffner Dep. (document no. 43-6) at 121:12-122:2. Regular
reviews of audit logs would have informed district IT
supervisors that Kimber had created new folder, named “YEP,” on
the server.8 Id. at 126:4-22, 133:20-134:19, 135:4-14. Finally,
regular meetings between IT supervisors and employees who had
administrator credentials, such as Kimber, would have allowed
the district to refresh the employees’ understanding of what is
and is not appropriate use of those credentials. Id. at 130:2-
132:2. Heffner elides the fact, however, that none of these
policies or procedures would have alerted the district to the
inappropriate nature of the contents of the “YEP” folder without
some suspicion on the district’s part that would cause IT
supervisors to investigate it. And plaintiff has offered no
evidence supporting such a suspicion. Accordingly, while
Heffner’s opinion may suggest that the school district has room
8 At oral argument, plaintiff’s counsel sought and obtained the court’s leave to supplement the record with information concerning the date of the “YEP” folder’s creation, which the plaintiff did. See document no. 47. Portsmouth, given the opportunity to respond, declined to do so. The court concludes, for the reasons discussed in this section, that the date of the folder’s creation has no bearing on Portsmouth’s conspicuous unenforcement (or lack thereof) of its computer use policies.
13 to improve its supervision of its IT staff’s conduct, does not
support a conclusion that Portsmouth had a municipal policy of
conspicuous failure to enforce its computer use policies.
For the second pillar of her conspicuous non-enforcement
argument, the plaintiff contends that Portsmouth should have
scrutinized Kimber’s computer use after an incident in November
2012, when Kimber reacted poorly to an email that he saw on a
school librarian’s computer. The parties do not dispute the
facts of the event. While remotely connected to a librarian’s
computer to provide requested IT support, Kimber saw an email
from that librarian to another employee, which was open on her
desktop, and which spoke unflatteringly of him. He responded by
emailing the librarian about her comments, for which he was
disciplined. Though the plaintiff suggests that this event
should have prompted Portsmouth to investigate Kimber’s computer
use, the evidence does not support that suggestion. As the
plaintiff’s expert concludes, Kimber’s access of the librarian’s
computer was within not only the bounds of Portsmouth’s computer
use policies, but also Kimber’s job duties. See Heffner Report
(document no. 43-7) at 3 (“the use of remote desktop access by
[Kimber] to access a teacher’s desktop/laptop was within the
limits prescribed for an information technician.”). To the
extent that the email Kimber sent violated Portsmouth’s computer
use policies -- and it is unclear to the court whether the
14 plaintiff argues that it does -- Portsmouth’s reaction in
disciplining Kimber counters, rather than supports, the
plaintiff’s suggestion that Portsmouth failed to enforce its
policies and this invited Kimber to violate them.9 Nor is there
any evidence that facts of this incident -- an employee
contacting another for criticizing him behind his back -- would
raise concerns about (a) potential misuse of school district
computers or (b) inappropriate contact between that employee and
students. And even if it had, a single instance of failure to
discipline an employee does not amount to “an adequate basis for
municipal liability under Monell.” Santiago, 891 F.2d at 382
(failure to discipline officer on two occasions does not amount
to “evidence of a failure to discipline sufficiently widespread
to reflect a municipal policy” and defeat summary judgment).
The plaintiff here has failed to demonstrate that a dispute
of material fact exists as to issues on which she carries the
9 The plaintiff relies on Sango v. City of New York, No. 83 CV 5177, 1989 WL 86995, at *17 (E.D.N.Y. July 25, 1989), wherein the District Court for the Eastern District of New York concluded that the city’s failure to investigate four separate complaints that a given officer had beaten people without provocation “might well have led him to believe that he could engage with impunity in misconduct such as that alleged” in that case. Sango is inapposite. Here, the plaintiff concedes that Portsmouth disciplined Kimber for the email incident. And that is the only incident of Kimber’s computer-related malfeasance, aside from the existence of the hidden “YEP” folder, that the plaintiff alleges that Portsmouth was or should have been aware of.
15 burden at trail -- specifically, demonstrating that Portsmouth
had a policy of conspicuously failing to enforce existing,
written policies concerning employee interaction with students
and use of the school district computer system.
2. Non-existent policies
The court turns, then, to the remaining “1%” of the
plaintiff’s argument: that school district de facto policies or
customs caused the district to ignore additional “red flags”
that should have prompted the district to monitor Kimber’s
computer use. While the court is not unsympathetic to a minor
plaintiff victimized by a predatory school district employee, it
does not find this argument persuasive as a matter of civil
rights law under the Monell municipal liability doctrine.
Following on the plaintiff’s lack-of-supervision arguments
with respect to existing policies, the plaintiff here argues
that Portsmouth had a custom of not performing required yearly
evaluations of its employees’ performances. A failure to
evaluate Kimber on a yearly basis, the argument goes, caused
Portsmouth to ignore behaviors by Kimber that would have
triggered closer school district scrutiny and, had the district
monitored him, it would have noticed the hidden “YEP” folder
and, hence, his violation of the acceptable use policy. See
Obj. (document no. 43) at 4. As an initial matter, on the facts
16 presented by the parties, the district had a policy -- formal or
otherwise -- of reviewing its employees annually. See McDonough
Dep. (document no. 43-5) at 64-65. And, the unrebutted evidence
of record suggests that Kimber was evaluated on a yearly basis.
Plaintiff cites the deposition testimony of Kimber himself and
of Portsmouth’s network administrator, Thomas Lotz, for the
contrary proposition. See Obj. (document no. 43) at 4. Kimber
never testified as much, however, see Kimber Dep. (document
no. 43-1) at 46, and Lotz testified that he reviewed Kimber’s
performance over the course of the year, albeit informally, see
Lotz Dep. (document no. 43-3) at 64 (district IT administrator
performed informal performance reviews of Kimber “[a]nd failing
any objections yearly, he would continue to be employed.”).
Thus, the plaintiff’s theory fails at its initial premises --
that Portsmouth had a custom of not reviewing its employees’
performance.
Finally, untethered from any particular policy, the
plaintiff contends that the school district should have
monitored Kimber more closely in light of what it knew or should
have known about his conduct, years earlier, as a high school
student at Portsmouth High School. As a high school senior, the
teenaged Kimber moved in with an acquaintance, from whom he
stole a check and cashed it. To the extent that Kimber intends,
by this, to argue municipal liability resulting from failure to
17 sufficiently screen an employee before hiring him, Portsmouth is
still entitled to summary judgment because the plaintiff, on the
undisputed facts presented, cannot lead a reasonable fact finder
to the conclusion that Portsmouth was “deliberately indifferent”
in its hiring decision. See Brown, 520 U.S. at 410-11. “[A]
finding of culpability” under this theory “must depend on a
finding that this [employee] was highly likely to inflict the
particular injury suffered by the plaintiff. The connection
between the background of the particular applicant and the
specific constitutional violation alleged must be strong.” Id.
at 412. The connection between cashing a stolen check and
sexual assault is not “strong” so as to satisfy this
requirement.
Conclusion
The plaintiff attempts, through her Monell claim against
Portsmouth, to impose liability on the school district for the
off-campus actions of one of its employees under the theory that
the school district’s conspicuous failure to enforce its
policies against sexual harassment and improper computer usage
caused the employee to violate the plaintiff’s civil rights. As
noted above, counsel has not provided, and the court has not
been able to locate, any authority in which a school district
has been held responsible under § 1983 in related circumstances.
18 Nor do the circumstances here warrant such a conclusion, where
the plaintiff has not demonstrated that a reasonable factfinder
could conclude that Portsmouth conspicuously failed to enforce
its policies or had a de facto policy or custom that could have
caused the plaintiff’s injury. In the absence of a dispute of
material fact on this score, the court grants Portsmouth’s
motion for summary judgment on Count 8 of the complaint. As
discussed supra, the plaintiff has voluntarily withdrawn
Counts 2-7 as against the school district; those claims are,
accordingly, dismissed with prejudice.
SO ORDERED.
____________________________ Joseph N. Laplante United States District Judge
Dated: July 12, 2016
cc: Justin Caramagno, Esq. Lawrence A. Vogelman, Esq. Dona Feeney, Esq. Katherine E. Spillane, Esq.