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Robertson v. The School Board of City of Richmond

United States District Court, E.D. Virginia, Richmond Division

February 1, 2019

HERBERT T. ROBERTSON, SR., Plaintiff,
v.
THE SCHOOL BOARD OF THE CITY OF RICHMOND, VIRGINIA, et al., Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE

         The plaintiff, Herbert Robertson, Sr., says that two Richmond Public Schools ("RPS") Department of Safety and Security ("DSS") officers unreasonably seized him in violation of the Fourth Amendment. Based on this allegation, the plaintiff brought this action under 42 U.S.C. § 1983 against the School Board of the City of Richmond, Virginia ("the Board"), and RPS Superintendent Jason Kamras in his official capacity, among others. The Board and Kamras have moved to dismiss Counts Three and Four of Robertson's complaint for failure to state a claim. Robertson agrees that the Court should dismiss Counts Three and Four against Kamras because they are duplicative of the claims against the Board, [1] so the Court will dismiss those Counts against Kamras. Because Robertson alleges a plausible claim for relief against the Board in Counts Three and Four, the Court will deny the motion as to the Board.

         I. FACTS ALLEGED IN THE COMPLAINT

         Robertson works as a teacher's assistant at Mary Scott Preschool Center. On November 6, 2017, school administrators called Robertson to the front office. When Robertson arrived, DSS Lieutenants Dandridge Hawkes and Patricia White told him that they received a report that he had come to school smelling like alcohol. Hawkes said that "protocol" required Hawkes and White to detain Robertson in the office until a school administrator arrived. (Compl. ¶ 25.)

         Johnnye Massenburg-Johnson, the principal of Mary Scott, arrived at the office approximately fifteen minutes later. Massenburg-Johnson reiterated the report against Robertson and told him that RPS policy required a blood alcohol content ("BAC") test. Hawkes instructed Massenburg-Johnson to "read [Robertson] his rights." (Id. ¶ 36.) In response, Massenburg-Johnson read and gave Robertson a copy of the Drug and Alcohol Free Workplace Policy. The policy requires employees suspected of a drug or alcohol violation to submit to testing or subject themselves to dismissal. When Robertson agreed to the testing, he believed it would take place at the school.

         Hawkes and Massenburg-Johnson, however, told Robertson that they could not perform the testing at the school and that he needed to go to Retreat Doctors' Hospital for testing. Showing no signs of intoxication, Robertson offered to drive himself to the hospital. Massenburg-Johnson and White told Robertson that he could not drive himself and that DSS officers would take him to Retreat. Hawkes said that "protocol" required Robertson's continued detention and transportation for testing. (Id. ¶ 51.)

         Hawkes and White drove Robertson to Retreat, where staff performed BAC and drug tests. Following the testing, Hawkes and White drove Robertson to the RPS Department of Human Resources office, where a representative provided Robertson with a letter placing him on leave pending the results of his drug and alcohol tests. Robertson's BAC measured 0.0, and he tested negative for all seven listed drugs.

         The Board and Kamras have moved to dismiss Counts Three and Four of Robertson's six-count complaint.[2] Count Three alleges that the defendants violated the Fourth Amendment based on custom or usage with the force of law, and Count Four alleges that the defendants violated the Fourth Amendment based on failure to train.

         II. DISCUSSION [3]

         Courts may hold a municipality liable for the actions of its officers under 42 U.S.C. § 1983 only if the governmental body itself caused the deprivation of the plaintiffs rights. Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978)). Under Monell, a plaintiff can prevail if (1) he suffered a deprivation of his federal rights, and (2) the execution of the government's "policy or custom" inflicted the injury. Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003). A locality can develop a policy or custom in four ways:

(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that "manifest[s] deliberate indifference to the rights of citizens"; or (4) through a practice that is so "persistent and widespread" as to constitute a "custom or usage with the force of law.

Id. (quoting Carter v. Morris, 164 F.3d 215, 217 (4th Cir. 1999)). Robertson proceeds under the fourth theory in Count Three, and under the third theory in Count Four.

         A. Count Three

         A governmental custom "may arise if a practice is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law." Id. at 473. "Municipal fault for allowing such a developed 'custom or usage' to continue requires (1) actual or constructive knowledge of its existence by responsible policymakers, and (2) their failure, as a matter of specific intent or deliberate indifference, thereafter to correct or stop the practices." Spell v. McDaniel,824 F.2d 1380, 1391 (4th Cir. 1987). "To establish constructive knowledge, a plaintiff can show any combination of [the following]: the widespread extent of the practices, general knowledge of their ...


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