19-1030
Kimble v. Kingston City School District

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
26th day of November, two thousand nineteen.

Present:
            RICHARD C. WESLEY
            DEBRA ANN LIVINGSTON,
            JOSEPH F. BIANCO,
                   Circuit Judges.
_____________________________________

DAVID KIMBLE,

                          Plaintiff-Appellant,

                 v.                                                19-1030

KINGSTON CITY SCHOOL DISTRICT,

                  Defendant-Appellee.
_____________________________________

For Plaintiff-Appellant:                         MICHAEL H. SUSSMAN, Sussman & Associates,
                                                 Goshen, New York

For Defendant-Appellee:                          MARK C. RUSHFIELD, Shaw, Perelson, May &
                                                 Lambert, LLP, Poughkeepsie, New York

        Appeal from a judgment of the United States District Court for the Northern District of

New York (Scullin, J.).


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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant David Kimble (“Kimble”) appeals from a decision and order, entered

on March 19, 2019, granting the motion to dismiss brought by Defendant-Appellant Kingston

City School District (“the District”) on the basis that Kimble failed to state a claim for violation

of his First Amendment right to petition the government and his First Amendment right to

intimate association. We review de novo a district court’s grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations in the complaint as

true and drawing all reasonable inferences in favor of the plaintiff.   See Caro v. Weintraub, 618

F.3d 94, 97 (2d Cir. 2010).    We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

       Among several bases relied upon by the district court in dismissing Kimble’s action in its

entirety, the court determined that Kimble failed to plead that the violations of his rights resulted

from a municipal policy or custom as required to impose liability on a school district pursuant to

Monell v. Department of Social Services, 436 U.S. 658, 663, 695 (1978). While Kimble’s First

Amendment claims as pleaded may raise interesting questions, we need not reach them because

we agree that Kimble failed to plead that the events in question resulted from either a District

policy or custom or a decision by a District employee acting as a final policymaker.

       “Municipal entities, including school districts, are ‘persons’ within the meaning of §1983

and therefore subject to suit under that provision.”   Nagle v. Marron, 663 F.3d 100, 116 (2d Cir.

2011) (citing Monell, 436 U.S. at 663). But “a municipality cannot be held liable under § 1983

on a respondeat superior theory,” Monell, 436 U.S. at 691, and so § 1983 “distinguish[es] acts of

the municipality from acts of employees of the municipality,” imposing liability only for “action


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for which the municipality is actually responsible,” Nagle, 663 F.3d at 116 (quoting Pembaur v.

City of Cincinnati, 475 U.S. 469, 479 (1986)).

       A municipality is liable under 42 U.S.C. § 1983 only when the injury results from the

“government’s policy or custom, whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694.           “Although

‘official policy’ often refers to formal rules or customs that intentionally establish ‘fixed plans of

action’ over a period of time, when a municipality ‘chooses a course of action tailored to a

particular situation,’ this may also ‘represent[ ] an act of official government “policy” as that

term is commonly understood.’” Montero v. City of Yonkers, 890 F.3d 386, 403 (2d Cir. 2018)

(quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004)) (alteration in

original). “A school district’s liability under Monell may be premised on any of three theories:

(1) that a district employee was acting pursuant to an expressly adopted official policy; (2) that a

district employee was acting pursuant to a longstanding practice or custom; or (3) that a district

employee was acting as a ‘final policymaker’” in causing the violation. Hurdle v. Bd. of Educ.,

113 F. App’x 423, 424-25 (2d Cir. 2004). Whether a particular official is a final policymaker “is

a question of state law” to be decided by the trial court. Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989) (emphasis omitted).

       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.         On appeal, Kimble argues that, when

evaluating the motion to dismiss and drawing all factual inferences in his favor, the district court


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should have construed each allegation in the complaint that the “defendant” committed

constitutional violations as referring to “the School District itself, as a municipality acting

through its final policymakers.” Reply Br. at 13.         Kimble argues that, because under New

York state law a school district may only lawfully take employment actions through its Board of

Education, the board is the relevant “final policymaker.” See N.Y. Educ. L. § 2503(5).

       However, it is settled Second Circuit law that, to prevail under a Monell theory of

municipal liability, plaintiffs must do more than “merely assert[]” the existence of a municipal

policy or custom leading to a rights violation. Montero, 890 F.3d at 404.           Plaintiffs must

actually allege facts “tending to support, at least circumstantially,” the inference that the

complained-of actions were pursuant to a municipal policy or custom. Id. at 403–04 (rejecting

a Monell claim as insufficiently pleaded where the plaintiff merely asserted that the police

department, “acting through its final policymaking officials,” engaged in the relevant conduct

without providing facts to support the inference of a custom or policy). Kimble acknowledges

that the complaint makes no reference to a Board of Education decision, does not use the term

“final policymaker,” and does not allege that Parker (the District’s chief of security and the only

individual identified in the complaint) was the individual who made the decision not to hire him

or that, even if he was, he had final authority with respect to that question.

       Nevertheless, Kimble maintains that the only fact he must allege is that a municipal

defendant took some action that violated his rights—which is not a “fact” at all, but a conclusory

statement reflecting the basic premise of any § 1983 suit against a municipality.    We disagree.

Based on the lack of factual allegations in this complaint, 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


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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.

       Because his complaint fails to plead any facts supporting the inference that the adverse

employment actions underlying his First Amendment claims were made pursuant to the policy or

custom of the District or a decision by an employee with final policymaking authority, the

district court correctly dismissed the complaint. And, although Kimble could have moved for

leave to amend, he did not do so at the district court, and his request, made to this Court in a

footnote in his brief, is not properly made for the first time before this Court. See Kosovich v.

Metro Homes, LLC, 405 F. App’x 540, 542 (2d Cir. 2010) (citing In re Nortel Networks Corp.

Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008)).

                                         *        *      *

       Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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