Monell, Monell, Monell

We used to have a judge at the federal courthouse in White Plains who held court every Friday morning, disposing of a smorgasbord of matters, one-by-one, from motions to dismiss to discovery disputes to pre-trial conferences to you name it. You would learn a lot while waiting for your case to be called, as everything was done in open court. Judge Brieant was decisive and did not mince words. One day, a lawyer was trying to advance his case but Judge Brieant kept reminding him of the rules guiding municipal liability in Section 1983. It's been around 20 years, but I can still hearing his voice booming: "Monell, Monell, Monell!"

The case is Kimble v. Kingston City School District, a summary order issued on November 26. Monell, Monell, Monell is still an issue. What is Monell? Many years ago, the Supreme Court said that if you want to sue the government for civil rights violations under 42 U.S.C. 1983, you have to name the individual violators. You could also sue the employer, such as a county, town or village, only if the constitutional violation resulted from a municipal policy or practice. You don't have to come forward with a written policy. Rather, we can assume a policy exists if the violation is widespread within the department or municipality, or if a final decisionmaker committed the civil rights violation. That was the Monell case, issued in 1978. It's all very complicated, because proving a Monell violation is time-consuming and turns on legal intricacies. While there are sometimes good reasons to pursue a Monell claim, i.e., pursuing municipal reform or avoiding qualified immunity (which individual defendants but not municipalities can invoke), it is usually easier to just sue the individual supervisors or police officers, whose damages or settlements are usually paid by the municipality anyway. 

In this case, the plaintiff sued the Kingston City School District, in my neck of the woods in Ulster County. Plaintiff, who worked as a school resource officer at the district (and also worked for the local police department), claimed the district retaliated against him because he complained that other students were bullying his son. The district court stated that "Plaintiff alleges that Defendant District took inadequate measures to protect his son; and, as a result, other students attacked and injured his son."

To bring a First Amendment retaliation claim, the plaintiff must show he complained about a matter of public, not private, concern. The district court said Kimble only complained about a private matter, because the complaint concerned his child. I am not sure that ruling was correct; student bullying is a problem nationwide. But the Court of Appeals does not take up that issue, though it deems it an interesting one. Instead, the Court of Appeals (Wesley, Livingston and Bianco) focuses on Monell, concluding that plaintiff failed to plead an adequate claim against the school district. Since plaintiff pleaded no claims against any individual defendants, the case is over.

Why did Kimball lose the case? The Circuit says, "Kimble makes no attempt to argue that the actions alleged to have violated his rights here were made pursuant to a 'policy' or 'custom'; he thus necessarily relies on the third theory—that an official with final policymaking authority took action regarding, or made the specific decision with respect to, his rejection from a school security officer position and his removal from his school resource officer position." But the Court says plaintiff did not allege facts tending to show the constitutional violation was pursuant to a municipal policy or custom. Instead, he argued that "the only fact he must allege is that a municipal defendant took some action that violated his rights." That is not enough, the Court says:

the decision not to hire Kimble as a school security officer may have been made by low-level employees who removed his name for consideration just as plausibly as by a final policymaker. Furthermore, while contracts submitted in support of the District’s motion to dismiss demonstrate that the superintendent had the authority to request Kimble’s reassignment from the Town of Ulster Police Department, Kimble alleged only that "defendant" directed his reassignment. In the absence of some factual allegations, it is impossible for any court to engage in the necessary analysis of whether Kimble’s claim properly stems from the action of a final policymaker under state law or, conversely, improperly seeks to impose respondeat superior liability on the District. Having failed to plead any facts regarding the chain of events involved in the decisions not to hire him as a school security officer and to remove him from his position as a school resource officer, Kimble has failed to plead a municipal policy or custom.