United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
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).
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).
following facts are undisputed.
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).
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 classmates of her
daughters'. Id. at 3. 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.
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.
following night, on Saturday, October 15, 2018, Swafford
sexually assaulted K.D. (Id.; see also DE
144 at 17).
STANDARD OF REVIEW
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 (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 (1986)
(internal quotation marks omitted)).
ANALYSIS OF SUMMARY JUDGMENT MOTIONS
Count I: 42 U.S.C. § 1983
The Pike County Board of Education
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. Claibourn
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 (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).
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).
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
(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
Claiborne Cnty., 103 F.3d at 508 (emphasis added)
(citing City of Canton v. Harris, 489 U.S. 378,
388-89 (1989)); see also Thorpe v. Breathitt Cnty. Bd. of
Educ., 8 F.Supp.3d 932, 938-39 (E.D. Ky. 2014).
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 ...