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Virginia Beach officials defeat student’s suit

Where a middle-school student was charged with possession and distribution of child pornography after he shared a photo of a female student’s genitalia, and after the student then filed a civil rights suit against school and city officials, they were granted summary judgment on all claims.


O.W., a minor, filed this suit after he was charged with possession and distribution of child pornography in the Virginia Beach Juvenile and Domestic Relations Court, or JDR. The charges resulted from allegations that plaintiff had shown and sent an explicit photograph to other students at Kempsville Middle School. After making a finding of guilt, the state court deferred disposition and ultimately dismissed the charges.

Plaintiff has sued the City of Virginia Beach, a police officer, the school board and various school officials. Defendants have filed motions to amend their answers and motions for summary judgment. Plaintiff has filed a motion for partial summary judgment and for leave to file a third amended complaint.

Motion to amend

The city defendants seek to amend two paragraphs of their answer and to add collateral estoppel as an affirmative defense. Because the denial of these allegations is consistent with the factual record as well as representations made by the city defendants in other motions, the motion to amend will be granted.

The school defendants also want to make one change in their answer, relating to damages. This request is moot because the court will grant summary judgment in favor of defendants as to all claims in O.W.’s second amended complaint.

Motion to strike

O.W. contends that an order from the JDR cites to the wrong statutory provision and therefore does not authorize use of his juvenile records in this proceeding. Despite the citation to the wrong statute, it is clear from the face of the order that it was intended to release O.W.’s court records. The motion to strike is denied.

Procedural challenges

Defendants argue that this court lacks subject matter jurisdiction to hear plaintiff’s constitutional arguments based on the Rooker-Feldman doctrine. This argument is unpersuasive. The fact that the state court considered and dismissed similar legal challenges is of no moment because O.W.’s second amended complaint presents independent federal law claims, which are not intertwined with the state court judgment.

The city defendants also assert that plaintiff’s constitutional claims are barred by the doctrine of collateral estoppel. They are not. The state court’s rejection of O.W.’s constitutional challenges was not “essential” to the dismissal of his criminal action.

Count One

O.W. alleges that the school defendants violated his rights under the Fourth, Fifth and Fourteenth Amendments. The court finds that the search did not violate the Fourth Amendment. Mr. Baker’s search and seizure of O.W.’s phone followed a report by a teacher that O.W. may have been in possession of an explicit photograph of a female student. Given the circumstances, Mr. Baker’s search was “justified at its inception” and “reasonably related in scope.”

Turning to the Fifth Amendment claim, the court finds that the statements O.W. made to Mr. Baker in the presence of the officer were voluntary. The court grants summary judgment in favor of the school defendants as to Count One.

Count Two

O.W. alleges that the officer and the city engaged in a civil conspiracy. While it is clear that there was an agreement between the city and school board to coordinate when responding to criminal activity, it is unreasonable to infer, without more, that this was an agreement to deprive plaintiff of his constitutional rights. The court will dismiss Count Two.

Counts Three and Four

A § 1985(3) claim requires a separate underlying constitutional violation. Because O.W. does not plead an underlying constitutional violation based on race, the court will grant summary judgment in favor of defendants as to Count Three.

In Count Four, O.W. alleges that certain defendants discriminated against him on the basis of his sex in violation of the Equal Protection Clause. As O.W. fails to show that he was inappropriately “singled out” or that defendants’ actions were “invidious or in bad faith,” the court will grant summary judgment to defendants as to Count Four.

Virginia claims

O.W. alleges that the school defendants failed to protect his Fourth, Fifth and Fourteenth Amendment rights and are liable for negligence and negligence per se under Virginia state law. Underlying these claims is the notion that the school defendants have a duty to protect his constitutional rights under “special relationship” and “state created danger” theories and failed to do so. Because the court finds that no such duty exists under these facts, the school defendants are granted summary judgment on these claims.

‘Monell’ liability

O.W. alleges that all defendants are liable in their official capacities for constitutional violations under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Because O.W. fails to identify any underlying constitutional violations that the city or school board could be held liable for, the court will grant defendants’ motions for summary judgment as to these claims.

Title IX

O.W. alleges that the school board violated Title IX because A.F. sexually harassed him by sending him the explicit photograph. O.W. does not meaningfully articulate how sending an explicit picture to another student (even if unsolicited) constitutes “harassment based on [his] sex,” how it created a hostile or abusive environment at school or why the actions of A.F. are fairly attributable to Kempsville.

Third amended complaint

If O.W. desires to continue the prosecution of his case in this forum, he must seek leave to file a third amended complaint 30 days from today’s date. The court concludes that proceeding in this way is necessary in light of the court’s grant of summary judgment in favor of defendants, the substantial changes O.W. proposes in his third amended complaint and the instruction to “freely give leave when justice so requires.”

Defendants’ motions for summary judgment granted. Plaintiff’s motion to file a third amended complaint denied. City defendants’ motion for leave to file amended answer granted. School defendants’ motion for leave to file amended answer denied as moot. Plaintiff’s motion to strike denied.

O.W. v. School Board of the City of Virginia Beach, Case No. 2:21-cv-448, Feb. 14, 2023. EDVA at Norfolk (Hanes). VLW 023-3-063. 33 pp.