The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2251
CHRISTINE M. SANDERS,
Plaintiff - Appellant,
versus
ROBERT BROWN; ROBERT HOLDERBAUM, individually
and in his official capacity as Former
Principal of Newington Forest Elementary
School; FAIRFAX COUNTY SCHOOL BOARD; DONNA L.
LEWIS,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:06-cv-00080-LMB)
Submitted: October 29, 2007 Decided: December 11, 2007
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frederic W. Schwartz, Jr., Washington, D.C., for Appellant. Thomas
J. Cawley, Sona Rewari, HUNTON & WILLIAMS LLP, McLean, Virginia; A.
Richard Thorsey, THORSEY LAW FIRM PLLC, Fairfax, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christine M. Sanders appeals the district court’s adverse
grant of summary judgment in favor of, and the denial of relief on
her 42 U.S.C. § 1983 (2000) complaint against, Donna Lewis.1
Sanders, who is a 1998 graduate of Newington Forest, alleged that
while she was enrolled in grades four through six at Newington
Forest, Brown subjected her to inappropriate “physical and sexual
touchings.”2
The parties agree that the central inquiry in this case
is what Brown did on the two prior occasions in which similar
complaints against him were made during February and March 1996,
and whether the actions Lewis took in response were so insufficient
as to constitute deliberate indifference under § 1983. The facts
presented to the district court, via deposition transcripts and
supporting documentation, are as follows: Lewis was employed from
1989 until her retirement in 2003 by the School Board as an
1
Sanders originally filed this civil action pursuant to 42
U.S.C. § 1983 (2000) and Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681 et seq., against the Fairfax County School
Board, Robert Holderbaum, a former principal of the Newington
Forest Elementary School (“Newington Forest”), and Robert Brown,
her former gym teacher while she was a student at Newington Forest.
Sanders amended her complaint to add as a party defendant Donna
Lewis, another former principal of Newington Forest, alleging a
claim under § 1983 against Lewis in her individual capacity. This
appeal is taken by Sanders challenging only the grant of summary
judgment in favor of Lewis.
2
She alleged sexual assault, sexual battery, and intentional
infliction of emotional distress under Virginia common law against
Brown.
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elementary school principal. In July 1995 Lewis became the
principal of Newington Forest. At the time, Brown was one of two
physical education teachers at Newington Forest and had been
teaching there for ten years.3
On February 22, 1996, the mother of a third-grader
(“Student No. 7") met with Lewis and the assistant principal after
school, and reported that her daughter told her that she had sat on
Brown’s lap, that he picked her up and turned her around to face
him with her legs straddling him, and that it made her feel
“uncomfortable.” The mother initially told Lewis that Brown had
restrained her daughter and she was unable to leave, but then later
corrected herself, telling Lewis that, while her daughter had not
explicitly told her so, she assumed that Brown had restrained her
daughter. The mother was concerned and wanted to talk to Brown
about the incident. The mother reportedly also told Lewis that she
“loved” Brown and that she knew he was a good teacher. Based on
the report, Lewis thought Brown may have exercised poor judgment,
but she did not think that he had been sexually inappropriate with
the student.
Prior to the start of school the following morning, Lewis
met with Brown. She told him that the mother of Student No. 7 had
come to her expressing concerns and questioned him about any
3
Brown was employed by Newington Forest as a physical
education teacher from September 1987 until December 1999.
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contact he had had with the student. Brown told Lewis that the
student came and sat on his leg and asked for candy because she had
been a helper at the end of gym class. He had no candy to give
her. He remembered picking her up, turning her around to face him,
and telling her that he would try to find some candy to give to her
later. Brown was quite concerned and upset at having upset Student
No. 7, and was anxious to speak with the student’s mother. Lewis
told him that he had exercised poor judgment and that they needed
to meet with the student’s mother.
As part of her investigation into the complaint by
Student No. 7, Lewis called Holderbaum, who had preceded her as
principal at Newington Forest, advised him that a parent had
reported a concern to her, and asked whether there had been any
previous concerns about Brown. Holderbaum told Lewis that there
had been no complaints, and that Brown was one of the most
respected and loved teachers at the school.
On February 23, 1996, Lewis, the mother of Student No. 7,
and Brown met. Brown related the same explanation for his behavior
that he had related to Lewis. The mother told Brown that she
wanted to believe him, that she respected him, and that all three
of her children loved him. Brown told Student No. 7's mother that
if he had done anything to cause her daughter discomfort that he
was very sorry and that he had not intended to do so.
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After Brown left the room, Lewis advised the mother that
if she was uncomfortable, she had every right to report the
incident and that regardless of what she chose to do, Lewis would
follow-up with Brown. The mother told Lewis that she wanted to
believe that Brown had not done anything intentionally to make her
daughter uncomfortable. Lewis did not disbelieve Brown’s account,
and she did not believe that there was anything sexual about what
Brown had done, though she felt that he may not have exercised the
best judgment in the situation. The mother was indecisive about
how she was feeling at the conclusion of the meeting, wanted to
discuss it with her husband, and she and Lewis decided they would
talk the following Monday.
Lewis explained in deposition that she was “very clear”
about the circumstances under which she had an obligation to report
something to Child Protective Services (“CPS”), and that she had
called CPS many times in the past. She attested that she did not
feel that it was necessary to report this incident to CPS.
The morning following the Friday meeting with Brown,
Lewis telephoned Student No. 7's mother, who told Lewis “very
confidently” that she was “fine” with where she was now, that she
and her husband had talked about it, and that she was “very
comfortable that Mr. Brown meant no harm to [her] child.” The
mother stated that she did not wish to pursue the matter further,
although she did request a letter of assurance from Brown that he
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would not hold the report against any of her children. She also
told Lewis that she did not want anything in Brown’s personnel
file, that she did not want him to lose his job, and that she felt
that what he had done merely was poor judgment on his part.
Lewis called Brown and told him what Student No. 7's
mother had said. She told him that he had used poor judgment, that
it could have been interpreted in many ways, and that he and the
school were fortunate that this parent was open and was willing to
listen and be objective. She also told him that they needed to
talk about a plan of action or guidelines to make sure that he did
not get himself in such a situation again.
Lewis drafted a memorandum to Brown, recounting the
report and her investigation, and which contained several points to
remind Brown about exercising good judgment.4 Lewis met with
Brown, gave him a copy of the memo, and placed a copy in his
personnel file. She felt that the incident had been thoroughly
discussed and was “very comfortable” that Brown had not intended
anything “malicious” or to “harm the child.” She attested that she
thought that Brown had made a “misjudgment,” and did not think
4
These included that Brown would “avoid calling students into
his office or the storage areas alone. If a child should come in
which he is alone in the gym, he will deal with the matter
promptly. At such times, the office door will remain open;”
“develop[ing] a system with the students to demonstrate his
approval of their actions by positive words or a ‘high five’ or
some other innocuous means;” possibly having a teddy bear available
if students need a “hug;” and “not hold[ing] children in his lap
for any reason.”
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“that he was being abusive to (Student No. 7) or that [Student No.
7] was at risk or that anyone was at risk.”
As part of her follow-up, Lewis also wrote a letter to
the Student No. 7's mother, thanking her for her cooperation in
resolving the concern and pledging her own vigilance in closely
monitoring the health and well-being of the students in her school.
Lewis forwarded to Student No. 7's mother a letter of apology from
Brown.5 Lewis concluded that there was nothing sexual about the
incident. She never heard from the mother again.
Less than a week later, on March 6, 1996, she had a phone
conversation with the mother of Student No. 8, who reported that
her daughter had told her that Brown had done something to make her
feel uncomfortable. At a meeting later that same day, Student No.
8 reported to Lewis that Brown had come up behind her and had given
her a hug. She said she then went into Brown’s office to put
something away, and while she was leaning over the desk to look at
some photos mounted in his window, he leaned up against her and
5
The letter, addressed to the parents of Student No. 7, with
a copy to Lewis and dated March 1, 1996, read:
I now realize that what I did was not
thoughtful or respectful of the teacher-
student relationship. I wholeheartedly assure
you that no harm was ever intended to your
daughter by my actions.
I will never allow her or any other children
to feel uncomfortable around me again. I want
to assure you also that all children are safe
in my care.
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then directed her out. After questioning by Lewis, Student No. 8
told her that she “thought she felt his private part against her.”
The following morning, Lewis spoke with Brown, who denied
that he had hugged Student No. 8 in the gym. He said that he
walked in his office and Student No. 8 was standing at his desk.
He said he stood behind her and made “[l]ike a kneading motion or
a little tapping motion across her back.” He stated that he took
her arms by the elbows and directed her out the door, stating that
he was going to be late for bus duty and needed her to move on.
Brown denied having leaned against Student No. 8 and said that, if
anything, she may have felt the fanny pack he was wearing, but that
he did not touch her with his body.
After meeting with Brown, Lewis contacted her immediate
supervisor, Area Superintendent Donald Sheldon. She attested that
she thought that Student No. 8's report had a “different element”
from the previous concern regarding Student No. 7 because “there
was a suggestion of perhaps [Brown’s] body part touching the girl.”
After speaking to Sheldon on the phone, Lewis met with him in
person and related both situations involving Student No. 7 and
Student No. 8. Sheldon advised Lewis to contact Alan Barbee, a
former police officer with twenty years’ police experience, who
had been working for the Fairfax County school system as an
investigative specialist since his retirement from the Fairfax
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County Police twenty years earlier. Lewis phoned Barbee “right
away.”
On March 9, 1996, Lewis drafted a memo of warning to
Brown.6 She characterized this memo as a “directive” to Brown that
told him exactly where “the line” was and told him “in no uncertain
terms” that failure to comply would be “insubordinate” and “would
put him at risk of losing his job.”
On March 12, 1996, CPS and the Fairfax County Police met
with Lewis and Brown at the school. Lewis told CPS and the police
about the previous incident involving Brown and Student No. 7, and
about the plan of action she had given Brown as a result. At the
conclusion of their investigation, CPS indicated to Lewis that they
were going to rule Student No. 8's complaint “unfounded.” In
addition, the police determined that there was nothing sexual about
the incident and “dropped themselves out of the case” after meeting
with Brown.
On March 13, 1996, Barbee returned the call Lewis had
made to him, and she relayed to him the report made by Student No.
8, as well as information relating to the prior incident involving
Student No. 7. Barbee spoke to both the police detective and the
CPS worker investigating Student No. 8's complaint, who also told
him that they believed Brown’s actions to have been unintentional.
6
She characterized her previous memo to him as a “plan of
action,” which was based in “common sense,” and was a “reminder,”
and a document into which she had allowed him input.
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The detective concluded that there was no basis for continuing a
police investigation because there was no specific allegation of
sexual touching or anything that would constitute a criminal
offense.
On March 18, 1996, CPS issued a letter to Brown, formally
notifying him that Student No. 8's complaint had been ruled
“unfounded.” Student No. 8's mother and Lewis reached similar
conclusions. Based on her own investigation and that conducted by
CPS and the police, Lewis was “comfortable that it was incidental
and not intentional but not smart.” She attested that had she
thought Brown was “going to cross that line” or “that he was a risk
for children in [her] school,” that she “couldn’t have kept him at
[her] school.”
Barbee attested that he did not recommend to Lewis or to
anyone else that any disciplinary action be taken as to Brown, nor
did he advise Lewis to closely monitor Brown. Barbee did not
believe that Brown had sexually abused anyone at the school in
1996. Based on the investigations and resolutions of both the
February 22, 1996, and the March 6, 1996, complaint, Lewis also did
not conclude that Brown needed closer supervision and monitoring.
No further complaints were made against Brown while Sanders was a
student at Newington.7
7
Sanders graduated from Newington Forest in June 1998.
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Sanders was twenty years old when she sued Lewis.8 She
claimed that beginning around 1995-1996, when she was nine years
old and in the fourth grade, she was subjected to “frequent and
ongoing physical and sexual touchings by Mr. Brown,” and that these
touchings continued regularly for the next two years, ceasing only
when she graduated and physically left the school at the end of
sixth grade in 1998. She asserted that during and after each of
the alleged touchings, she “felt shocked, frightened, and unable to
respond,” she “knew it was bad,” it made her uncomfortable at the
time, she did not like, and did not understand, what Brown was
doing, and felt humiliated, nervous, and fearful. Sanders
contended that Brown’s conduct caused fear of bodily harm, further
offensive sexual contact, and had long-lasting adverse effects
throughout her school career, including a decline in her academic
performance. Sanders did not complain to anyone about Brown’s
conduct while she was a student at Newington Forest. She alleged
that in April/May 2004, she “began to realize and understand what
had happened to her at the hands of Mr. Brown,” recognizing the
touchings as “abuse,” and then reported the alleged abuse. Brown
denied having touched Sanders in an inappropriate way.
In October 2000, two years after Sanders left Newington
Forest and four years after the incidents involving Students Nos.
7 and 8, the School Board terminated Brown’s employment for
8
Sanders’ date of birth is January 21, 1986.
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unprofessional conduct and insubordination, based upon his failure
to comply with Lewis’ March 1, 1996, and March 9, 1996, memoranda,
and following allegations made by other students in 1999. The 1999
allegations likewise were ultimately determined by the Virginia
Department of Social Services to be unfounded. Brown has never
been prosecuted or convicted of any crime, including any charge of
sexual abuse of Sanders or anyone else.
Lewis claimed, on summary judgment, that she was not
deliberately indifferent to a risk that Brown was sexually abusing
his students. She further asserted that Sanders’ claim against her
is barred by the applicable statute of limitations.9
The district judge thoroughly reviewed the briefs,
arguments, and exhibits of the parties and carefully considered the
claims and the evidence before concluding, on the record, that even
if Sanders established negligence on Lewis’ part with regard to the
risk of sexual abuse at the hands of Brown, she failed to reach the
high burden of deliberate indifference required to make out a
§ 1983 claim. We agree with the district court.
We review an award of summary judgment de novo. Higgins
v. E. I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is appropriate when there is no genuine
issue of material fact, given the parties’ respective burdens of
9
Given our disposition of the appeal with regard to the § 1983
claim, we decline to address the statute of limitations argument.
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proof at trial. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-49 (1986). In determining whether the
moving party has shown there is no genuine issue of material fact,
a court must assess the factual evidence and all inferences to be
drawn therefrom in the light most favorable to the non-moving
party. Id. at 255; Smith v. Virginia Commonwealth Univ., 84 F.3d
672, 675 (4th Cir. 1996).
Supervisory officials may be held liable in certain
circumstances for the constitutional injuries inflicted by their
subordinates. See Slaken v. Porter, 737 F.2d 368, 372 (4th Cir.
1984). Such liability is not based on respondeat superior, but on
“a recognition that supervisory indifference or tacit authorization
of subordinates’ misconduct may be a causative factor in the
constitutional injuries [the subordinates] inflict on those
committed to their care.” Id. at 372-73. We have articulated a
three-part test to establish supervisory liability under § 1983:
(1) that the supervisor had actual or
constructive knowledge that his
subordinate was engaged in conduct that
posed a pervasive and unreasonable risk
of constitutional injury to citizens like
the plaintiff;
(2) that the supervisor’s response to that
knowledge was so inadequate as to show
deliberate indifference to or tacit
authorization of the alleged offensive
practices; and
(3) that there was an affirmative causal link
between the supervisor’s inaction and the
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particular constitutional injury suffered
by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations
omitted; internal quotations omitted).
While it is questionable whether Sanders satisfied any of
these three elements, the focus of the district court, and the
focus on appeal, is on the second element. To establish whether
Lewis demonstrated “deliberate indifference” to the presence of the
risk of sexual abuse to students by Brown, Sanders must prove that
Lewis showed “continued inaction in the face of documented
widespread abuses.” Slaken, 737 F.2d at 373. “Deliberate
indifference is a very high standard – a showing of mere negligence
will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.
1999). Accordingly, “a supervisory official who responds
reasonably to a known risk is not deliberately indifferent even if
the harm is not averted.” Baynard v. Malone, 268 F.3d 228, 236
(4th Cir. 2001). For Sanders to overcome summary judgment, she
must prove that genuine issues of material fact exist which support
her claim that Lewis’ actions and failures to act constituted
deliberate indifference.
To assess whether Lewis responded reasonably to the risk
that Brown was subjecting his female students to sexual abuse, it
is helpful to review the actions Lewis took upon receiving the
complaints by Student Nos. 7 and 8. It is undisputed, as noted by
the district court and as detailed above, that Lewis immediately
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responded to both complaints. She conducted her own investigation
and inquiry into the complaints lodged against Brown by Student
Nos. 7 and 8, reported the allegations to her superiors and other
appropriate individuals, and sought their guidance in investigating
and handling the situation. It was Lewis who set in motion the
chain of events which culminated with the findings of both a police
investigation and a social services agency investigation which
determined that the complaints against Brown were unfounded.
Lewis’ reactions to the complaints were immediate, reasonable, and
appropriate. She investigated the allegations, meeting with the
students’ parents, the students, Brown, the Fairfax County police
detective, CPS officials, the School Board investigator, and her
own supervisor, and took direct and specific actions based on the
results of her investigation, which actions included giving Brown
both oral and written reprimands and providing direction to Brown
relative to the manner in which he was to conduct himself with
students. Both complaints were resolved within a matter of days to
the satisfaction of the parents involved, and to the satisfaction
of the authorities. There is no evidence in this record, or
allegation, that Lewis was told to take any further or alternative
action with regard to the complaints of Student Nos. 7 and 8 that
she refused or otherwise failed to take. As the district court
correctly held, while there may have been additional precautions
Lewis might have imposed, such as having Brown monitored more
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closely, there is no evidence that such actions would have made any
difference in this case.10 Thus, there is no genuine issue of
material fact, construed in Sanders’ favor, that demonstrates that
Lewis was deliberately indifferent to any risk associated with
Brown, and she cannot be held liable under § 1983 to Sanders for
Brown’s misconduct.
Accordingly, we affirm the district court’s order
granting the motion for summary judgment in favor of Lewis. Given
that summary judgment was properly granted, the district court was
well within its discretion to dismiss without prejudice the state
claims against Brown. 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 the
decisional process.
AFFIRMED
10
As noted above, Lewis received no further complaint about
Brown during the time Sanders was enrolled at Newington Forest.
Moreover, even if Lewis had put Brown on administrative leave
pending the results of the independent inquiries by the police and
social services relative to the complaints made by Student Nos. 7
and 8, because the results of those investigations were in favor of
Brown, Lewis would, presumably, have reinstated Brown prior to his
having had any contact with Sanders.
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