                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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