By v. Portsmouth Sch. Dist. Sau 52

T.F. by p/n/f Shannon F. v. Portsmouth School District SAU 52, et al.

Case No. 14-cv-368-JL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

January 27, 2017

REPORT AND RECOMMENDATION

The plaintiff, Shannon F., brings this civil rights action under 42 U.S.C. § 1983 as parent and next friend of her minor daughter, T.F. T.F. was sexually assaulted by defendant Kenneth Kimber when she was a ninth-grader at Portsmouth High School. At the time of the assault, Kimber was employed by the school as an Information Technology ("IT") technician. The plaintiff alleges that Kimber and the Portsmouth School District SAU 52 ("School District") violated her rights under the Fourth and Fourteenth Amendments to the United States Constitution.

On October 28, 2014, the Clerk of Court entered default against Kimber for failure to appear. On July 12, 2016, after nearly two years of litigation, the district judge entered summary judgment in favor of the School District. See July 12, 2016 Order (doc. no. 49). The plaintiff then moved, under Federal Rule of Civil Procedure 55, for an entry of default judgment against Kimber. (Doc. no. 52.) This motion was referred to the undersigned magistrate judge, who, subsequent to a telephonic conference with plaintiff's counsel, issued a procedural order requesting additional briefing related to the motion. (Doc. no. 53.) Plaintiff's counsel submitted this briefing on December 14, 2015 (hereinafter "supplemental briefing"). (Doc. no. 57.)

For the reasons discussed below, the court recommends that the district judge deny the plaintiff's motion for default judgment.

Standard of Review

When a defendant is defaulted for failing to appear or respond, he is "taken to have conceded the truth of the factual allegations in the complaint . . ." Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir. 2002) (quoting Franco v. Selective Ins. Co., 184 F.3d 4, 9 n. 3 (1st Cir. 1999). Before entering a default judgment, however, the court "may examine a plaintiff's complaint, taking all well-pleaded factual allegations as true, to determine whether it alleges a cause of action." Ramos-Falcón v. Autoridad de Energía Electríca, 301 F.3d 1, 2 (1st Cir. 2002) (quoting Quirindongo Pacheco v. Rolon Morales, 953 F.2d 15, 16 (1st Cir. 1992)). "[A] court may also consider any affidavits or evidence on the record." Amguard Ins. Co. v. Santos Remodeling, Inc., No. 14-cv-14745-FDS, 2016 WL 424961, at*1 (D. Mass. Feb. 3, 2016) (citing KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 17-20 (1st Cir. 2003)). At its discretion, the court may "conduct hearings . . . to . . . establish the truth of any allegation by evidence . . . ," Fed. R. Civ. P. 55(b)(2)(c), though "only if the court has made its requirements known in advance to the plaintiff, so that [she] could understand the direction of the proceeding and marshal[] such evidence as might be available to [her,]" Ramos-Falcón, 301 F.3d at 3.

Background

I. Allegations in the Complaint

As is relevant to her claim against Kimber, the plaintiff makes the following allegations in her amended complaint. T.F. was born in 1998. First Amend. Compl. ¶ 8 (doc. no. 16). During the relevant period, she was a student at Portsmouth High School. Id. At that time, Kimber was employed by the School District as an IT technician at Portsmouth High School. Id. ¶ 9.

During the 2012-2013 academic year, Kimber "use[d] his position of trust and authority, arising solely and directly from his position as an employee of [the School District], togroom [T.F.¹]" Id. ¶ 13. Between January of 2013 and February 13, 2013, Kimber "began to sexually, emotionally, and mentally abuse T.F." Id. This abuse "occurred both on and off school property and began through the use of school resources." Id.

The abuse continued until Kimber was arrested. Id. ¶ 14. On October 7, 2013, Kimber pleaded guilty to felonious sexual assault and other crimes in Rockingham County Superior Court. Id. ¶ 15. On November 14, 2013, he was sentenced to three-to-eight years of incarceration. Id.

The plaintiff alleges that Kimber was "acting under color of state law." Id. ¶ 16. She further alleges that Kimber's conduct "was not done in good faith and was done intentionally, maliciously, and sadistically, with a deliberate indifference to the rights of [T.F.]" and was done "unnecessarily and wantonly with the purpose of causing harm and inflicting pain . . . in violation of [T.F.'s] constitutional rights to bodily integrity, equal protection, and due process . . . ." Id.

II. Other Facts in the Record

This case is somewhat unique in that considerable litigation occurred after Kimber was defaulted. Accordingly,there are documents in the record from which a more complete narrative of the events alleged by the plaintiff can be extracted. These documents include, among other things, several affidavits and the deposition testimony of Shannon F., T.F., Kimber, and others. From these documents, the court constructs the following factual narrative.²

On August 10, 2009, the School District officially hired Kimber as an IT Technician. McDonough Aff. ¶ 13, March 19, 2015 (doc. no. 22-5) ("McDonough Aff. I"). In this capacity, Kimber was involved in "the setup and maintenance of technology equipment and software for use by students and staff . . . and assisting the Network Administrator service the information technology needs of the [School] District." Id. ¶ 15. This job description required little, if any, contact with students on school property, and no contact with students off school grounds. Id. ¶¶ 16-17; Lotz Aff. ¶ 5, March 23, 2016 (doc. no. 42-3); see also McDonough Dep. at 48, September 21, 2016 (doc. no. 43-5). The school district issued Kimber a laptop that he was permitted to take home with him after school hours. Lotz Aff. ¶ 9. T.F. met Kimber when she was a student at Portsmouth Middle School. T.F. Dep. 78-79, Aug. 25, 2015 (doc. no. 43-2). She first encountered him "wander[ing] the hallways" and "interacting with students . . ." Id. She had further encounters with him when she was on the eighth grade basketball team, as Kimber was in apparent relationship with T.F.'s basketball coach and would often be present at the team's practices. Id. at 78. At some point during this period, T.F. came home from school and informed her mother, Shannon F., that she had met Kimber, who had been a classmate of Shannon F.'s at Portsmouth High School. Shannon F. Dep. at 43-44, Aug. 25, 2015 (Doc. no. 43-4). Shannon F. also independently observed Kimber at the middle school during a visit with T.F.'s teachers when T.F. was in seventh grade. Id. ¶ 37-38.

In the fall of 2012, T.F. matriculated to Portsmouth High School for ninth grade. T.F. Dep. at 82. Once at the high school, T.F. continued to encounter Kimber in the hallways. Id. at 81-82. At some point during the first half of the school year, Kimber sent a "friend request" to T.F. on Facebook. T.F. Dep. at 68-69, 71. T.F. was initially "confused" by this request, as she understood there to be a school policy that prohibited a school employee and a student from being "friends" on Facebook until after the student graduated. Id. at 69-72.She ultimately accepted the request because she "didn't think any harm could come of it." Id.

In January of 2013, Kimber started sending Facebook messages to T.F. Id. at 87. Kimber and T.F. exchanged phone numbers, and Kimber began to send T.F. text messages. T.F. Aff. at 1, Aug. 12, 2016 (doc. no. 52-2). T.F. received messages from Kimber while at home, and believes that she sometimes also received message from Kimber while at school. T.F. Dep. at 88.

Kimber soon started sending Facebook messages to T.F. with naked photos of himself, including photos of his penis. Id. at 78, 87-88; T.F. Aff. at 1. T.F. did not bring these photos to the attention of Shannon F. or anyone at the school. T.F. Dep. at 85. Nor did she, with one possible exception, inform any of her friends of these messages. Id. At some point, Kimber requested that T.F. send him photos in return. T.F. Aff. at 1. T.F. complied by sending Kimber a Facebook message that included a naked photo of herself without her face showing. T.F. Dep. at 77-78.

In late January or early February of 2013, Kimber sent T.F. a message on Facebook inviting her to his apartment to watch the Super Bowl. Id. at 88-89, 93-94; T.F. Aff. at 1. T.F. was at home when she received this message. T.F. Dep. at 94. T.F. agreed to meet Kimber and, on Super Bowl Sunday, walked to the"Sherburne Store" a few blocks from her house in Portsmouth. Id. at 89, 94; T.F. Aff. at 1. Kimber picked T.F. up and brought her to his apartment. T.F. Dep. at 89. Kimber gave T.F. a tour of his apartment. T.F. Aff. at 1. He then brought her to his bedroom, where they had a sexual encounter. Id.; see also T.F. Dep. at 89-90. T.F. was fourteen years old at the time. T.F. Aff. at 1. After the assault, Kimber dropped T.F. back off at the Sherburne Store. T.F. Dep. at 89. Kimber pursued additional sexual encounters with T.F., which she refused. Id. at 88.

At some point in late January or early February of 2013, several of T.F.'s classmates "hacked" into her Facebook account and discovered messages T.F had exchanged with Kimber. T.F. Dep. at 51-54. Rumors began spreading at the high school regarding an inappropriate relationship between T.F. and Kimber. Id. at 50-51; T.F. Aff. at 1. In early February of 2013, after her sexual encounter with Kimber, T.F. sent an e-mail to several of her teachers identifying herself as the student subject to the rumors. T.F. Dep. at 90-92; Donovan Dep. at 15, Dec. 9, 2015 (doc. no. 45-3).

The Portsmouth Police Department began investigating Kimber for inappropriate contact with a student. McDonough Aff. ¶ 6, March 17, 2016 (doc. no. 42-2) ("McDonough Aff. II"). OnFebruary 11, 2013, law enforcement informed the School District of its investigation. Id. The School District suspended Kimber on February 12, 2013. Id. ¶ 7; ...