Wilmink v. Kanawha County Board of Education , 214 F. App'x 294 ( 2007 )


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  •                             UNPUBLISHED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.
    ---------------------------------------------
    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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.
    2
    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.
    3
    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.”).
    4
    (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.
    5
    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
    .
    6
    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
    7
    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
    8
    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
    9
    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
    10