Wilmink v. Kanawha County Board of Education

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1484

ANGELA WILMINK,

Plaintiff - Appellant,

versus

KANAWHA COUNTY BOARD OF EDUCATION, an

instrumentality of the State of West Virginia;

DAVID GILLISPIE, as an agent of Kanawha County

Board of Education and in his individual

capacity,

Defendants - Appellees,

and

DENNIS OSBORNE, as an agent of Kanawha County

Board of Education and in his capacity as an

individual,

Defendant.

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PROSECUTING ATTORNEY, Kanawha County,

Movant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. John T. Copenhaver, Jr.,

District Judge. (2:03-cv-00179)

Submitted: December 5, 2006 Decided: January 17, 2007

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William V. DePaulo, Charleston, West Virginia, for Appellant. Jan

L. Fox, Hannah B. Curry, STEPTOE & JOHNSON, Charleston, West

Virginia, for Appellees Kanawha County Board of Education, an

instrumentality of the State of West Virginia, and David Gillispie,

as an agent of Kanawha County Board of Education and in his

individual capacity; George J. Joseph, BAILEY & WYANT, P.L.L.C.,

Charleston, West Virginia, for Dennis Osborne, as an agent of

Kanawha County Board of Education and in his individual capacity.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Plaintiff Angela Wilmink filed suit to recover for injuries

caused eighteen or nineteen years earlier by the alleged sexual

misconduct of her Washington Junior High School teacher, Dennis

Osborne.1 Because plaintiff has not produced any evidence that her

principal or her school board had any reason to know that Osborne

might assault plaintiff or any evidence that the defendants

fraudulently concealed any material facts preventing plaintiff from

knowing of her cause of action, we affirm the district court’s

dismissal of this action on statute of limitations grounds.

I.

This case arises out of an alleged sexual assault. In her

complaint, Wilmink claimed that the defendants -- Dennis Osborne,

her former teacher and an athletic coach; David Gillispie, her

former principal; and the Kanawha County Board of Education --

violated 42 U.S.C. § 1983 (2000), Title IX of the Education Act of

1972, 20 U.S.C. § 1681 et. seq. (2000), and various provisions of

state law. Defendants moved to dismiss on the ground that

plaintiff’s claims were barred by the statute of limitations.

Wilmink responded by arguing that, because the defendants had

1

In her complaint, plaintiff states that the assault occurred

in 1984. In her deposition, however, plaintiff maintains that the

assault occurred in the spring of 1985. This discrepancy does not

affect the statute of limitations issue or this court’s

disposition.

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fraudulently concealed facts supporting her claim, the discovery

rule tolled the applicable statute of limitations.

The district court treated defendants’ filings as summary

judgment motions. It granted summary judgment in favor of Osborne

because “from the very moment of assault” plaintiff had “possessed

all information necessary to hold Osborne accountable.”2 With

respect to plaintiff’s claims against the Board and Gillispie, the

court found that plaintiff had “adequately alleged” fraudulent

concealment of material facts and that such allegations merited

investigation through discovery. The court thus denied defendants’

motion for summary judgment and ordered a 120-day discovery period.

Following discovery, defendants renewed their motion for summary

judgment again arguing that plaintiff’s claims were barred by the

statute of limitations. The district court granted summary

judgment in favor of Gillispie and the Board. Plaintiff appeals.

II.

Under West Virginia law, a personal injury action must be

brought within two years. W. Va. Code § 55-2-12 (2000). Where, as

here, the injured party is a minor, West Virginia Code § 55-2-15

2

Plaintiff’s notice of appeal indicates her intention to

pursue an appeal against all parties, including Dennis Osborne.

Because plaintiff has not raised any claim with respect to Osborne

on appeal, however, those arguments are waived. See Carter v. Lee,

283 F.3d 240, 252 (4th Cir. 2002) (“[T]his Court normally views

contentions not raised in an opening brief to be waived.”).

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(2000), tolls the limitations period until plaintiff reaches

majority. Under these provisions, Wilmink was required to file her

petition in 1991, two years after she turned eighteen.3 Under the

“discovery rule,” however, a statute of limitations is tolled until

a claimant knows or “should know that he has been injured and who

is responsible.” Cart v. Marcum, 423 S.E.2d 644, 647 (W. Va.

1992).

West Virginia’s highest court recognizes two variants of the

discovery rule. Merrill v. W. Va. Dep’t of Health & Human Res.,

632 S.E.2d 307, 312 (W. Va. 2006). In Gaither v. City Hosp., Inc.,

487 S.E.2d 901, 909 (W. Va. 1997), the court held that “the statute

of limitations begins to run when the plaintiff knows, or by the

exercise of reasonable diligence, should know (1) that the

plaintiff has been injured, (2) the identity of the entity who owed

the plaintiff a duty to act with due care, and who may have engaged

3

Plaintiff’s federal claims are appropriately decided with

reference to the state statute of limitations. It is well-settled

that “the statute of limitations for a claim under 42 U.S.C. § 1983

is borrowed from state law.” Nasim v. Warden, Maryland House of

Corrections, 64 F.3d 951, 955 (4th Cir. 1995). Likewise, because

Title IX does not contain an express statute of limitations, “every

circuit to consider the issue has held that Title IX also borrows

the relevant state’s statute of limitations for personal injury.”

Stanley v. Trustees of California State Univ., 433 F.3d 1129, 1134

(9th Cir. 2006) (citing Curto v. Edmundson, 392 F.3d 502, 503-04

(2d Cir. 2004); Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 77-78

(3d Cir.1989); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716,

729 (6th Cir. 1996); Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615,

618 (8th Cir. 1995); M.H.D. v. Westminster Schs., 172 F.3d 797, 803

(11th Cir. 1999)). In any case, plaintiff has never argued it is

inappropriate to borrow West Virginia’s statute of limitations with

respect to her federal claims.

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in conduct that breached that duty, and (3) that the conduct of

that entity has a causal relation to the injury.” And, in Cart v.

Marcum, the court recognized a second discovery rule: fraudulent

concealment. 423 S.E.2d at 648. Because the fraudulent

concealment doctrine operates “where a plaintiff does or should

reasonably know of the existence of an injury and its cause,”

Gaither, 487 S.E.2d at 908, it “applies only when there is a strong

showing by the plaintiff that some action by the defendant

prevented the plaintiff from knowing of the wrong at the time of

the injury.” Merrill, 632 S.E.2d at 318 (quotation omitted). We

consider each of these standards in turn.

A.

Plaintiff has failed to establish the existence of a genuine

issue of material fact with respect to any of the Gaither factors.

First, it is beyond dispute that plaintiff knew she had been

injured in 1984. She immediately reported the incident to her

aunt, and her mother found her sobbing the evening of the assault.

Moreover, according to plaintiff’s deposition testimony, she

avoided any further contact with Osborne -- she stopped taking

classes from him and quit as manager of the boy’s basketball team,

which he coached.

Second, plaintiff knew “the identity of the entity who owed

the plaintiff a duty to act with due care, and who may have engaged

in conduct that breached that duty.” Gaither, 487 S.E.2d at 909.

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As West Virginia’s highest court has instructed, the second Gaither

factor is a limited inquiry into “the identity of the wrongdoer,

not knowledge of the duty owed.” Merrill, 632 S.E.2d at 313.

Here, plaintiff clearly knew the identity of her principal and her

school board by the time she reached majority.

The third and final element of Gaither requires plaintiff to

establish she “neither knew nor by the exercise of reasonable

diligence, should have known that the conduct of [defendants] had

a causal relation” to her injury. Id. at 315. Plaintiff’s failure

to direct our attention to any evidence justifying her delay in

discovering the causal connection between her injuries and

defendants’ actions defeats her claim here. See Merrill, 632

S.E.2d at 316. As West Virginia’s high court noted recently in

Merrill -- a case where plaintiff similarly alleged that a

supervisory authority had failed to prevent sexual abuse -- to

survive a motion for summary judgment with respect to knowledge of

a causal connection between an alleged injury and a defendant’s

conduct, a plaintiff must “identify specific facts in the record

and articulate the precise manner in which that evidence supports

[her] claims of delay in discovering the causal connection between

[her] injuries and the [defendant’s] actions.” Id. at 317

(quotation omitted). Here, plaintiff points to no “specific facts”

that excuse her delay in discovering the causal connection, and, as

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noted below, there is no evidence that defendants concealed their

involvement in this case. See id. at 316 n.16, 317.

In short, by the time plaintiff reached her eighteenth

birthday she knew, or reasonably should have known, all the

elements of her cause of action. See Keesecker v. Bird, 490 S.E.2d

754, 771 (W. Va. 1997). Accordingly, she “is not entitled to the

protection of the discovery rule” announced in Gaither. Id.

B.

Plaintiff’s claim also fails under the fraudulent concealment

standard of Cart v. Marcum, 423 S.E.2d at 648. To create a triable

issue of fact, plaintiff was required to produce some evidence

tending to show that Gillispie or the Board had notice that Osborne

might sexually abuse students and that these school authorities

fraudulently concealed facts which prevented Wilmink from knowing

that she had a cause of action against Gillispie and the Board.

Plaintiff in this case has done neither.

The record is devoid of any fact which indicates that school

authorities had any reason to know that Osborne would engage in

offensive sexual conduct toward students prior to 1984. Implicitly

conceding as much, plaintiff argues that this knowledge was somehow

“imputed” to the Board by the “observations” of Linda Nelson, an

admittedly “non-supervisory” reading teacher. Plaintiff contends

that when her mother reported her daughter’s assault to Linda

Nelson, Nelson told her of a prior occasion in which Nelson saw

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Osborne try to slide his hand up the back of a female student’s

shorts. Nelson now denies ever witnessing Osborne touch a female

student in an inappropriate manner. Even assuming the truth of

plaintiff’s contentions, however, there is no evidence to suggest

that Nelson ever reported the incident to Principal Gillispie, the

School Board, or anyone else. In short, as the district court

found, “plaintiff has failed to produce a shred of evidence that

the Board or Gillispie had any reason to believe that Osborne would

engage in inappropriate sexual conduct with minor female school

children before the plaintiff’s alleged sexual assault in 1984.”

Plaintiff has not only failed to show that school authorities

had any reason to suspect that Osborne would engage in

inappropriate behavior but also failed to produce any evidence that

these defendants actively concealed facts which prevented plaintiff

from knowing of her claim. At its most basic, “[f]raudulent

concealment requires that the defendant commit some positive act

tending to conceal the cause of action from the plaintiff.” Miller

v. Monongalia County Bd. of Educ., 556 S.E.2d 427, 431 (W. Va.

2001) (citation omitted). Here, after 120 days of discovery, “the

record shows no competent evidence by the [plaintiff] that [the

defendants] did anything to hide [their] actions” from the

plaintiff. Keesecker, 490 S.E.2d at 771. Accordingly, plaintiff

has failed to make the requisite “strong showing” that “some action

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by the defendant prevented the plaintiff from knowing of the wrong

at the time of the injury.” Id. (quotation omitted).

III.

We in no way make light of plaintiff’s claims or the injuries

she may have suffered. We must, however, affirm the district

court’s grant of summary judgment since any cause of action which

Wilmink may have had against the defendants is barred by the

statute of limitations. Our disposition based on West Virginia’s

statute of limitations dispenses with all of plaintiff’s claims,

and we need not, therefore, address her other arguments. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid in the decisional process.

AFFIRMED

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