K.D. v. Swafford

• Decision Date: 09 November 2018
• Docket Number: CIVIL ACTION NO. 7:17-132-KKC
• Citation: 353 F.Supp.3d 606
• Parties: K.D., Plaintiff, v. Jerry SWAFFORD, the Pike County Board of Education, Reed Adkins and Mark Gannon, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

353 F.Supp.3d 606

K.D., Plaintiff,

v.Jerry SWAFFORD, the Pike County Board of Education, Reed Adkins and Mark Gannon, Defendants.

CIVIL ACTION NO. 7:17-132-KKC

United States District Court, E.D. Kentucky, Southern Division. at Pikeville.

Signed November 9, 2018

Michael Brian Hissam, Ryan McCune Donovan, Jonathan Zak Ritchie, Hissam, Forman, Donovan & Ritchie, PLLC, Charleston, WV, for Plaintiff.

Neal Smith, Pike County Board of Education, Pikeville, KY, Michael A. Owsley, English, Lucas Priest & Owsley, LLP, Bowling Green, KY, Jonathan C. Shaw, Porter, Banks, Baldwin & Shaw, PLLC, Paintsville, KY, Max Kirby Thompson, Smith, Thompson & Kennedy, PLLC, Pikeville, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

KAREN K. CALDWELL, CHIEF JUDGE

This matter originates from the sexual assault of K.D. by her school's plant superintendent and custodial supervisor, Jerry Swafford. (DE 1; DE 144 at 6). Today, the Court considers the defendants' motions for summary judgment and motion to dismiss, for which K.D. has submitted one consolidated response. (DE 143; DE 163; DE 164; DE 165; DE 167). The Court also considers K.D.'s motion to sanction Defendant Mark Gannon. (DE 148).

While there is no doubt that the plaintiff suffered a tragic injury, the law does not permit her to seek a remedy from the Pike County Board of Education, Reed Adkins, or Mark Gannon. Accordingly, for the reasons that follow, the Pike County Board of Education's, Reed Adkins', and Mark Gannon's motions for summary judgment are GRANTED . (DE 164; DE 163; DE 143). Jerry Swafford's motion to dismiss/for summary judgment is DENIED . (DE 165). And K.D.'s motion for sanctions is DENIED . (DE 148).

I. FACTUAL BACKGROUND

The following facts are undisputed.

Defendant Swafford was employed by the Pike County Board of Education as a janitor at Belfry High School, where K.D. was a student. (See, e.g. , DE 167 at 1). On Saturday, October 15, 2016, Swafford threw himself a birthday party at his residence, to which Belfry High School students were invited. (DE 163–1 at 2). At the party, Swafford served K.D. an alcoholic beverage, and she passed out. Id. Swafford then sexually assaulted K.D. in a bedroom. As a result, Swafford pleaded guilty to criminal sexual assault charges and is now serving a prison sentence in West Virginia. (Id. at 2–5; see also DE 144 at 17).

Cindy Andersen, a Belfry High School parent, attempted to stop Swafford's party before it began. Andersen became aware of the party plans on Friday, October 14, 2016, by reading text messages on her daughters' phones and through information shared by two male classmates¹ of her daughters'. Id. at 3.² Concerned about Swafford's behavior, Andersen telephoned the Pike County School Board, Belfry High School, and a policeman. Id. at 4. Andersen first spoke with Principal Gannon of Belfry High School, who scheduled a meeting with Anderson for the morning of October 17, 2016, the Monday after the party. Id. Gannon did nothing, however, to prevent the party from occurring. Id. at 4–5.

Although Andersen never spoke with Superintendent Adkins, she did speak with Nee Jackson, a member of the Pike County Board of Education, that same Friday afternoon. Id. at 5. Jackson counselled Andersen to meet with Gannon and to contact the police. Jackson, too, took no measures to stop the party. Id.

The following night, on Saturday, October 15, 2018, Swafford sexually assaulted K.D. (Id. ; see also DE 144 at 17).

II. STANDARD OF REVIEW

A moving party is entitled to summary judgment "if 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). In order to defeat a summary judgment motion, "[t]he nonmoving party must provide more than a scintilla of evidence," or, in other words, "sufficient evidence to permit a reasonable jury to find in that party's favor." Van Gorder v. Grand Trunk W. R.R., Inc. , 509 F.3d 265, 268 (6th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Summary judgment must be entered if, "after adequate opportunity for discovery," a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Tolton v. American Biodyne, Inc. , 48 F.3d 937, 940 (6th Cir. 1995) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted) ).

III. ANALYSIS OF SUMMARY JUDGMENT MOTIONS

A. Count I: 42 U.S.C. § 1983

i. The Pike County Board of Education

K.D. asserts that the Pike County Board of Education violated her Fourteenth Amendment right to be free from sexual abuse at the hands of a public school employee. (DE 1 at 6 ("COUNT I") ). "[A] schoolchild's right to personal security and to bodily integrity manifestly embraces the right to be free from sexual abuse at the hands of a public school employee." Doe v. Claiborne Cnty. , 103 F.3d 495, 506 (6th Cir. 1996). A violation of this right may give rise to a Monell claim against a school board. Id. at 507 (citing Monell v. Dep't of Social Servs. , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). Such a claim, however, may not rest on respondeat superior as a theory of recovery. Id. Under Monell , a school board "cannot be found liable unless the plaintiff can establish that an officially executed policy, or the toleration of a custom within the school district leads to, causes, or results in the deprivation of a constitutionally protected right." Id. (citing Monell , 436 U.S. at 690–91, 98 S.Ct. 2018 ).

"A municipal liability claim against [a] School Board must be examined by applying a two pronged inquiry: (1) Whether the plaintiff has asserted the deprivation of a constitutional right at all; and (2) Whether the County and/or the School Board is responsible for that violation." Id. at 505. It is undisputed that Swafford, a Board employee, violated K.D.'s right to be free from sexual assault. As such, the first prong of the inquiry is satisfied. K.D., however, has not produced any evidence on the second prong: that the Board tolerated a custom or officially executed a policy that caused the violation of her rights. Id. at 507 (citing Monell , 436 U.S. at 690–91, 98 S.Ct. 2018 ).

In her Section 1983 claim against the Board, K.D. asserts that there was an unconstitutional custom of failing to act to prevent sexual abuse. (DE 1 at 6 – 39 (emphasis added) ). To state a claim against the Board under an "inaction" theory, K.D. must establish:

(1) the existence of a clear and persistent pattern of sexual abuse by school employees;

(2) notice or constructive notice on the part of the School Board ;

(3) the School Board's tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount to an official policy of inaction ; and(4) that the School Board's custom was the "moving force" or direct causal link in the constitutional deprivation.

Claiborne Cnty. , 103 F.3d at 508 (emphasis added) (citing City of Canton v. Harris , 489 U.S. 378, 388–89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ); see also Thorpe v. Breathitt Cnty. Bd. of Educ. , 8 F.Supp.3d 932, 938–39 (E.D. Ky. 2014).

Here, K.D. does not advance evidence to show "that the School Board, as an official policymaking body, had a ‘custom’ that reflected a deliberate, intentional indifference to the sexual abuse of its students." Claiborne Cnty. , 103 F.3d at 508. The undisputed facts of this case do show that there have been at least five (5) employees of the Pike County School District who have committed or been accused of serious sexual misconduct against students within the ten (10) years prior to the filing of this suit. (See, e.g. , DE 164-1 at 14–16). For all of these, however, the Board has taken appropriate corrective measures, up to and including termination:

(1) In April 2008, Lincoln Bentley, a teacher at East Ridge High School, was terminated after being arrested for asking a minor to expose her breasts in exchange for a higher grade, although he was later found not guilty;

(2) In 2009, Frances Launa Stanley, a teacher at Belfry High School, was accused of having an affair with a student. She was suspended, reported to the Educational Professional Standards Board, and reassigned to a different school;

(3) In October 2012, Paige Danielle Johnson, a teacher at Elkhorn Elementary, resigned and was reported to child protective services after she was accused of making inappropriate advances toward an Eighth Grader;

(4) In 2015, Laura Barker, Assistant Principal of Pike County Central High School, was terminated after illicit photographs of her were distributed in the high school; and

(5) In October 2015, Kenneth Brown, a bus driver for East Ridge High School and Elkhorn Elementary School, was terminated after being charged with raping a minor.

(Id. ; DE 175 at 11). Not only did the Board adopt and maintain an official anti-harassment policy, it took appropriate action in each case of employee misconduct. (DE 164-1 at 14–16; DE 175 at 11; DE 175-16 at 2 – 13). K.D. has put forth no evidence that the Board customarily ignored the sexual abuse of its students with the force of law. Claiborne Cnty. , 103 F.3d at 507 (citing Monell v. Dep't of Social Servs. , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ).

K.D. has also not shown that the Board acted with deliberate indifference in failing to act to prevent her abuse by Swafford. Here, K.D. relies on contradictory testimony provided by Jerry Roberts, a bus driver and former janitor at Belfry High School, who alleges that he observed Swafford masturbating on school property. (See, e.g. , DE 135 at 33–34). In an unsworn recording taken by Ryan Donovan, plaintiff's counsel, prior to the initiation of this litigation, Roberts claimed that he reported the masturbation incident to...