249 F.3d 773 (8th Cir. 2001), 00-1874, Shrum v. Kluck

Docket Nº:00-1874
Citation:249 F.3d 773
Party Name:KIMBERLY ANN SHRUM, AS NEXT FRIEND OF JUSTIN PATRICK KELLY, A MINOR, PLAINTIFF-APPELLANT, v. MICHAEL KLUCK, DEFENDANT. DAVID WADE, INDIVIDUALLY AND AS SUPERINTENDENT OF THE ELWOOD, NEBRASKA, PUBLIC SCHOOL DISTRICT; THE ELWOOD, NEBRASKA, PUBLIC SCHOOL DISTRICT, DEFENDANTS-APPELLEES.
Case Date:May 08, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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249 F.3d 773 (8th Cir. 2001)

KIMBERLY ANN SHRUM, AS NEXT FRIEND OF JUSTIN PATRICK KELLY, A MINOR, PLAINTIFF-APPELLANT,

v.

MICHAEL KLUCK, DEFENDANT.

DAVID WADE, INDIVIDUALLY AND AS SUPERINTENDENT OF THE ELWOOD, NEBRASKA, PUBLIC SCHOOL DISTRICT; THE ELWOOD, NEBRASKA, PUBLIC SCHOOL DISTRICT, DEFENDANTS-APPELLEES.

No. 00-1874

United States Court of Appeals, Eighth Circuit

May 8, 2001

Submitted: December 14, 2000

Appeal from the United States District Court for the District of Nebraska

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[Copyrighted Material Omitted]

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Before McMILLIAN and Murphy, Circuit Judges, and Bogue, 1 District Judge.

McMILLIAN, Circuit Judge

Appellant Kimberly Ann Shrum, on behalf of her minor son Justin Patrick Kelly, appeals from a grant of summary judgment entered in District Court 2 for the District of Nebraska in favor of defendants, holding that the Elwood, Nebraska, Public School District ("Elwood") and its superintendent were not liable under either 42 U.S.C. § 1983 or Title IX (20 U.S.C. § 1681(a)) for damages resulting from her son's sexual molestation by a former Elwood school teacher employed by another school district after leaving his employment with Elwood. Shrum, ex rel. Kelly v. Kluck, No. 4:97CV3366 (D. Neb. Feb. 23, 2000 ) (memorandum and order). The district court found that Elwood's confidential settlement agreement with the teacher did not "shock the conscience" in violation of § 1983, nor did it constitute deliberate indifference in violation of Title IX. For reversal, Shrum claims that the district court erred in granting summary judgment in favor of Elwood on both the § 1983 claim and the Title IX claim. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction

Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331, 1332, and 1343. Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

Background

Elwood employed Michael Kluck as a teacher and coach in 1992. Kluck taught 9th, 11th, and 12th grade English, 7th and 8th grade study skills, and sponsored a journalism group. In November 1992, the Gosper County Sheriff's Department investigated a sexual assault complaint that Kluck had allegedly touched his female students inappropriately while at school. The school administration was aware of this investigation. Based upon student interviews, the deputy determined that Kluck had made inappropriate remarks to students but found no evidence of physical contact.

In October 1993, Richard Einspahr, the school principal, tape-recorded complaints about Kluck from 16 students. Based on these statements, Einspahr sent Kluck a written reprimand on October 27, 1993, which detailed the complaints about Kluck's inappropriate comments and touching. The letter also expressed concern about Kluck's having spent time alone with several junior high boys. The reprimand warned Kluck that Einspahr would continue to investigate the charges and allegations against him, and was prepared to take further action. Kluck issued a written reply that attempted to explain some of the allegations.

In December 1993 and March 1994, Kluck received poor evaluations of his work. On March 11, 1994, after consulting

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with Elwood's attorney, Einspahr sent Kluck a letter informing Kluck that he intended to recommend that the Elwood Board of Education not renew Kluck's contract for the following year. In a subsequent meeting, Kluck asserted that the letter violated his due process rights because he was not given adequate notice to request a termination hearing before the school board. On March 16, 1994, Superintendent David Wade sent Kluck a second letter that included all of the information required to satisfy Kluck's due process concerns, and Kluck requested a termination hearing before the Elwood Board of Education. After discovering that the school district's legal fees for the hearing would cost between $3,000 and $4,000, Elwood entered into a confidential settlement agreement with Kluck. 3

The settlement stipulated that: (1) Kluck could voluntarily resign, (2) Wade would write him a positive letter of recommendation, (3) all future references to Kluck would be consistent with the letter of recommendation, (4) Kluck's resignation would be categorized as "with good cause" for purposes of unemployment compensation, (5) Kluck would be allowed to remove any documentation from his employment file other than what the school district relied upon when hiring him, and (6) the terms of the settlement would remain "confidential to the extent allowed by law." Wade distributed a memorandum to each school board member describing these conditions and recommending that they agree to them. After the school board agreed, Wade signed the settlement agreement on March 24, 1994. 4

After leaving Elwood, Nebraska, Kluck applied for a teaching position for the following 1994-1995 school year in La Porte, Texas, where he submitted the letter of recommendation from Elwood. The letter stated in full:

Mr. Kluck has assisted Elwood Public Schools in a variety of activities and has been willing to help out in emergency situations. He has a good knowledge of his subject area and his coaching area. He has participated in numerous clinics.

Mr. Kluck used a variety of teaching aids and made use of library resources. Outwardly he showed an interest in his students and the varied activities of the school. He arrived at school on time and was aware of and followed school channels and procedures; phone calls, bills, and invoices were handled properly.

Mr. Kluck was responsible for Senior, Junior, and Freshman English, Junior High Study Skills, Journalism and year book sponsor. In addition he was head boys basketball and golf coach.

During the interview process, the La Porte school superintendent called Wade twice to ask about Kluck's teaching record at Elwood, but never actually spoke with Wade. The La Porte school district hired Kluck as a coach and teacher at La Porte Junior High for the 1994-1995 school year. The La Porte school district claims that it would not have hired Kluck if it had known about his prior misconduct in Elwood.

In November 1994, Kluck sexually molested Shrum's son, Kelly, one of Kluck's thirteen-year-old junior high students in La Porte, Texas. On September 14, 1995, Kluck pled guilty in Texas to the crime of Indecency with a Child. Shrum, on behalf of her son, filed suit against Elwood and

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Wade in federal district court, alleging § 1983 and pendent state law claims. Elwood moved for summary judgment, which the district court denied due to outstanding disputes of material fact on the § 1983 claim. Shrum amended her complaint to add a Title IX claim, arguing that Elwood's control over Kluck's future teaching opportunities made it liable for Kluck's subsequent molestation of her son. Elwood again moved for summary judgment. On its own motion, the district court asked for briefs on whether to apply the "shocks the conscience" standard to the § 1983 claim. Shrum, ex rel. Kelly v. Kluck, No. 4:97CV3366 (D.Neb. Jan. 18, 2000) (citing County of Sacramento v. Lewis, 523 U.S. 833 (1998) (Lewis)) (memorandum and order). After additional briefing, the district court applied the "shocks the conscience" standard to the § 1983 claim, renewed consideration of and granted Elwood's first motion for summary judgment on the § 1983 claim, and also granted Elwood's second motion for summary judgment on the Title IX claim. This appeal followed.

Discussion

I. Standard of Review

We review the district court's grant of summary judgment de novo to determine whether there is a "genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Ingram v. Johnson, 187 F.3d 877, 878 (8th Cir. 1999). Like the district court, we view the record in the light most favorable to the nonmoving party. Id. However, the nonmoving party must substantiate its allegations with evidence that is sufficiently probative to avoid summary judgment as a matter of law. Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to" her case, then all other facts will be considered immaterial and the moving party will be entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

II. § 1983 Claim

Shrum contends that the district court erred in dismissing her § 1983 claim on summary judgment because there are genuine issues of material fact regarding whether Elwood should be held liable for damages under § 1983 as a result of: (1) Elwood's maintenance of a policy or custom which exhibited deliberate indifference to her son's constitutional right to bodily integrity, and which proximately caused her son's injuries, and (2) Elwood's creation of the danger which resulted in her son's molestation and its subsequent duty to protect him from that danger. We disagree. For Shrum to defeat summary judgment, she must adequately prove the essential elements of § 1983 liability: (1) violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right. Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04 (1997) (Brown). We agree with the district court that Shrum failed to demonstrate genuine issues of material fact on these elements.

In order to incur § 1983 liability, "there must first be a violation of the plaintiff's constitutional rights." Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir. 1989); see also Doe v. Wright, 82 F.3d 265, 268 (8th Cir. 1996) (quoting Martinez v. California, 444 U.S. 277, 284 (1980) (noting that the...

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