                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

                              - 2 -
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.

                                     - 3 -
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.




                                - 4 -
          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


                                - 5 -
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.”

                               - 6 -
“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.

                                - 7 -
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




                               - 8 -
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.

                                - 9 -
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.

                                     - 10 -
               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.

                                       - 11 -
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.

                               - 12 -
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


                                 - 13 -
                  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

                                    - 14 -
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


                                 - 15 -
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.

                                       - 16 -
