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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY

her ardians

 

Plaintiff, Civ. Action No.
v.

JERRY SWAFFORD, in his individual capacity;
THE PIKE COUNTY BOARD OF EDUCATION,
REED in his individual capacity; and
MARK CANNON. in his individual capacity.

 

Defendants.
COMPLAI
INTRODUCTION
1. For years Pike County Board of Education employee Jerry hosted

"parties" at his home. during which he plied children with drugs and alcohol and sexually abused
them. The Board was aware of the parties and other misconduct by but did nothing
while untold numbers of Pike County children suffered as a result. This case is about just one of
those children.

2. On Friday. October 14' 2016, a concerned parent called Belfry Principal Mark
Gannon to report that her daughter had received an invitation to a party at Swafford's home the
her: night. She also informed Principal Gannon that she had seen photographs of Swafford in his
home with underage girls wearing nothing but towels Rather than taking action, however,
Gannon criticized the patent for impugning Swafford's character. Later that day, the same
concemed parent phoned the Pike County Board of Education and made the same report but the

Board also look no aclionr

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3.

While school officials were preoccupied with Homecoming activities, Swafford’s

“party” — attended by dozens of Pike County students and other children — went off as
planned. And because of the Board’s callous and deliberate indifference, K.D., a sixteen-year-old
child, was drugged and raped by Swafford.
4.

Swafford has pled guilty to his crime and will serve years in prison, but the

damage to K.D. — damage that the Board could have and should have prevented — will last a
lifetime. This suit seeks to hold the Board accountable for caring more about protecting a sexual
predator than safeguarding a child.
JURISDICTION AND VENUE
5.

This Court has federal question jurisdiction over the Plaintiff’s § 1983 and Title

IX claims against the Board under 28 U.S.C. § 1331, and supplemental jurisdiction over her state
law claims against Swafford under 28 U.S.C. § 1367.
6.

The Court has personal jurisdiction over Mr. Swafford, who worked in this

district, and over the Board, which is situated within the district.
7.

Venue is proper in this district under 28 U.S.C. § 1391 because a substantial part

of the events or omissions giving rise to the claims occurred in Pike County, Kentucky.
FACTS
8.

During the relevant time period, Swafford was a Board employee. Specifically,

Swafford was the plant supervisor at Belfry High School.
9.

On or around the week of October 10, 2016, Swafford planned a joint birthday

party for himself and a friend. It was Swafford’s 61st birthday. The “friend” was B.H., a sixteen-

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year-old student from another school district with whom Swafford was having a sexual
relationship.
10.

Invitations to Swafford’s party circulated among Belfry High School students via

social media. Swafford also personally invited children to attend his party while at school, and
using the cellular telephone provided by the Board.
11.

The party, at Swafford’s home in Chattaroy, West Virginia, was attended by

approximately 30 children. Swafford was the lone adult.
12.

As host, Swafford provided the children with 40-ounce bottles of malt liquor, 16-

ounce Rasberrita “tall boys,” vodka, marijuana, synthetic marijuana, and a cake that said “Happy
Birthday [B.H.]”
13.

K.D., a sixteen-year-old Belfry High School student was one of the attendees.

14.

Upon her arrival, Swafford handed K.D. a mixed drink. Shortly thereafter, K.D.

became intoxicated.
15.

Two witnesses observed Swafford spike K.D.’s drink with a prescription sleeping

16.

Hours later, another female child noticed K.D.’s absence and went looking for

pill.

her. When she opened the door to Swafford’s bedroom, she saw K.D. face down on the bed,
apparently unconscious, with her pants and underwear around her ankles. Swafford was on top of
her, pants down, with his penis touching K.D.’s genitals.
17.

K.D. was taken to the hospital, where she received treatment for he injuries.

18.

K.D. has also received psychiatric treatment for the mental anguish and emotional

trauma inflicted as a result of Swafford’s assault.

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19.

Swafford was interrogated by the West Virginia State Police and confessed to his

assault on K.D. He was subsequently charged with one felony count of sexual abuse by a parent,
guardian, or custodian, and one misdemeanor count of contributing to the delinquency of a
minor.
20.

In January 2017, Swafford appeared before the Mingo County Circuit Court and

pled guilty to one felony count of sexual abuse of a minor. In open court, he admitted to the facts
alleged in paragraph 16.
21.

Prior to K.D.’s rape, the Board and Superintendent Adkins had long been aware

that Swafford posed a substantial risk to students.
22.

For example, in 2012, a co-worker discovered Swafford masturbating in his office

with a female student’s garment wrapped around his face. Although the co-worker reported this
disturbing incident to the Belfry High School principal, no action was taken.
23.

During approximately the same time period, a public post in an online community

forum, of which the school administration was aware, warned that Swafford was “chasing little
girls all over the school” and engaging in sexual conduct with girls as young as fifteen.
24.

Swafford also frequently engaged in lecherous conduct on school grounds,

including inappropriate sexual contact with female students and inappropriate sexual remarks.
These public acts were witnessed by school officials and recorded by school surveillance
cameras.
25.

Swafford began hosting “parties” for students in or around 2015, when he was

awarded custody of his teenage daughter. He actively recruited guests at school and school
events. Parents, who were not made aware of previous allegations against Swafford, felt safe
because of Swafford’s position of trust within the school system.

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26.

In order to build relationships, Swafford frequently used school resources to

access and disseminate confidential information to students he would later recruit.
27.

Soon, bacchanalian weekend parties fueled by drugs and alcohol were an every-

weekend occurrence at Swafford’s home, and an open secret among the Belfry High School
faculty and administration.
28.

School officials were made aware of these parties by parents and students on

numerous occasions, but took no action.
29.

Most disturbingly, the Board had express forewarning about the party at which

K.D. was raped, but did nothing to stop it.
30.

On the afternoon of Friday, October 14, 2016, a concerned parent called Belfry

High School Principal Mark Gannon to report that her daughter had received an invitation to
Swafford’s birthday party, which was to occur at Swafford’s home on the very next day.
31.

The parent told Principal Gannon that she was concerned for the safety of the

children at the party because Swafford had provided drugs and alcohol to her daughters in the
past, and because she had seen photographs of Swafford in his home, arms wrapped around two
underage girls wearing nothing but towels. The parent begged Principal Gannon to stop the
party.
32.

Rather than taking any action, however, Principal Gannon admonished the parent

for making allegations that could damage Swafford’s reputation and career.
33.

Principal Gannon later admitted that he did not even discuss the allegations with

Swafford because he was too preoccupied with the weekend’s Homecoming festivities.
34.

After being ignored by Principal Gannon, the same concerned parent called the

Board of Education and spoke directly to the office of Superintendent Adkins and the Board to

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provide the same warning of imminent harm to K.D. Like Gannon, Superintendent Adkins and
the Board deliberately chose to do nothing.
35.

When word of the rape reached the school the following Monday, one teacher

uttered in response: “we all knew something like this was going to happen.”
36.

Indeed, they did. For years, the Board knew Swafford was dangerous. Then, when

the school system had the chance to protect K.D. and her classmates from a known, imminent
threat, the Board chose to shield a predator instead. And for the callous indifference of the adults
who were supposed to protect her, K.D. will pay a price for the rest of her life.
COUNT I
Violation of the Due Process Clause, Fourteenth Amendment (42 U.S.C. § 1983)
K.D. v. The Board, Superintendent Adkins (individual capacity), Principal Gannon
(individual capacity), and Swafford (individual capacity)
37.

School children like K.D. have a liberty interest in their bodily integrity that is

protected by the Due Process Clause of the Fourteenth Amendment, and physical sexual abuse
by a school employee violates this right. Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 507 (6th
Cir. 1996).
38.

Swafford used his position as a school employee to violate the constitutional

rights of students.
39.

The Board maintained an unconstitutional custom or practice of failing to act to

prevent sexual abuse. Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 369
(6th Cir. 2005).
40.

The facts show a clear and persistent pattern of prior misconduct involving similar

acts as those committed by Swafford in violation of students’ constitutional rights to be free of
sexual harassment, sexual abuse, and sexual assault.
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41.

The Board had actual or constructive notice of this pattern of sexual misconduct

by Swafford.
42.

The Board’s tacit approval of the unconstitutional conduct, such that their

deliberate indifference in their failure to act amounted to an official policy of inaction.
43.

These facts show a pattern of constitutional violations that would have made it

obvious to the Board that different policies, training, supervision, or disciplinary were needed to
prevent school employees from sexually harassing, abusing, or assaulting students.
44.

The Board’s custom or toleration of this custom was the moving force or direct

causal link in Swafford’s wrongdoing. Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 507 (6th
Cir. 1996).
45.

Superintendent Adkins and Principal Gannon are personally liable under 42

U.S.C. § 1983 for depriving K.D. of her due process right as a public school student to personal
security and bodily integrity because (a) they, as supervisors, learned of facts or a pattern of
inappropriate sexual behavior by Swafford, a subordinate, pointing plainly toward the conclusion
that Swafford would sexually abuse or assault K.D., a student; (b) they demonstrated deliberate
indifference toward the constitutional rights of K.D. by failing to take adequate precautions that
was obviously necessary to prevent or stop the abuse; and (c) such failure caused a constitutional
injury to K.D.
46.

Superintendent Adkins and Principal Gannon’s conduct amounted to a tacit

authorization of or knowing acquiescence in Swafford’s sexual misconduct against students like
K.D.

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COUNT II
Violation of Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681-88)
K.D. v. The Board
47.

Title IX provides that “No person . . . shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). This includes
the duty not to discriminate on the basis of sex, which encompasses a school employee’s sexual
abuse of a student. See Gebser v. Lago Vista Independent School District, 524 U.S. 274, 282
(1998) (citing Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 74-75 (1992)). Title IX
may be enforced through an implied right of action. See id. at 280-81.
48.

The sexual abuse by Swafford that K.D. experienced was so severe, pervasive,

and objectively offensive that it undermined and detracted from her educational experience and
effectively denied her equal access to the educational opportunities and benefits offered in the
Pike County schools.
49.

As school officials with sufficient authority to respond, Superintendent Adkins

and Principal Gannon each had actual notice that Swafford posed a substantial risk of harm to
students, to which K.D. was subjected.
50.

Superintendent and Principal Gannon were officials of the Board with sufficient

authority to address the discrimination and to institute corrective measures, yet they failed to do
so.
51.

The Board was deliberately indifferent to that substantial risk.

52.

The Board’s response was clearly unreasonable in light of the known

circumstances.

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53.

The Board’s conduct excluded K.D., on the basis of sex, from participation in an

educational program or activity that receives federal financial assistance.
54.

The Board’s conduct denied K.D. the benefits of an educational program or

activity that receives federal financial assistance.
55.

The Board’s conduct subjected K.D. to discrimination under an educational

program or activity that receives federal financial assistance.
56.

The Board thus deprived K.D. of rights secured by Title IX of the Education

Amendments of 1972, 20 U.S.C. §§ 1681-88.
57.

As a result, K.D. suffered damages.
COUNT III

Violation of Ky. Rev. Stat. § 344.555 – Prohibition against sex discrimination under any
education program receiving state financial assistance
K.D. v. The Board
58.

The sexual abuse by Swafford that K.D. experienced was so severe, pervasive,

and objectively offensive that it undermined and detracted from her educational experience and
effectively denied her equal access to the educational opportunities and benefits offered in the
Pike County schools.
59.

School officials with sufficient authority to respond had actual notice that

Swafford posed a substantial risk of harm to students, to which K.D. was subjected.
60.

Superintendent and Principal Gannon were officials of the Board with sufficient

authority to address the discrimination and to institute corrective measures.
61.

The Board was deliberately indifferent to that substantial risk.

62.

The Board’s response was clearly unreasonable in light of the known

circumstances.
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63.

The Board’s conduct excluded K.D., on the basis of sex, from participation in an

educational program or activity that receives state financial assistance.
64.

The Board’s conduct denied K.D. the benefits of an educational program or

activity that receives state financial assistance.
65.

The Board’s conduct subjected K.D. to discrimination under an educational

program or activity that receives state financial assistance.
66.

The Board thus deprived K.D. of rights secured by the Kentucky Civil Rights Act,

Ky. Rev. Stat. § 344.555.
67.

As a result, K.D. suffered damages.
COUNT IV
Negligence Per Se

K.D. v. Superintendent Adkins (individual capacity) and Principal Gannon (individual
capacity)
68.

“The doctrine of negligence per se allows a court to determine a standard of

conduct by reference to a statute.” Vanhook v. Somerset Health Facilities, LP, 67 F. Supp. 3d
810, 817 (E.D. Ky. 2014) (applying Kentucky law). In short, “[n]egligence per se is merely a
negligence claim with a statutory standard of care substituted for the common law standard of
care.” Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. Ct. App. 2009).
69.

“Kentucky has codified the common law negligence per se doctrine and created

an avenue by which an individual may seek relief even where a statute does not specifically
provide a private remedy. KRS § 446.070 provides that ‘[a] person injured by the violation of
any statute may recover from the offender such damages as he sustained by reason of the
violation, although a penalty or forfeiture is imposed for such violation.’” Vanhook v. Somerset
Health Facilities, LP, 67 F. Supp. 3d 810, 817 (E.D. Ky. 2014).
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70.

Kentucky Revised Statutes § 620.030 establishes a standard of care that requires

an individual to make a report to law enforcement authorities whenever that individual knows or
has reasonable cause to believe that a child is harmed or threatened with harm.
71.

The Kentucky Supreme Court has stated the language of Kentucky’s mandatory

reporting statute is “clear and unambiguous” such that “[a]ll individuals with firsthand
knowledge or reasonable cause to believe that a child is abused have a mandatory duty to report
the abuse.” Commonwealth v. Allen, 980 S.W.2d 278, 281 (Ky. 1998). Supervisors who receive
reports from their subordinates must relay that information to the authorities. Id. A
superintendent and school principal squarely fall within the meaning of the statute’s reference to
“supervisors.” Id.
72.

Because the reporting requirement in § 620.030 is mandatory, Kentucky courts

have held that the act of reporting child abuse is a ministerial—rather than discretionary—act for
which public school officials can be held liable in the event that they perform the act negligently.
See Savage v. Carter Cty. Bd. of Educ., 2009 WL 1884137, at *11 (E.D. Ky. June 30, 2009)
(citing Nelson v. Turner, 256 S.W.3d 37, 43 (Ky. Ct. App. 2008)).
73.

Superintendent Adkins and Principal Gannon knew or had reasonable cause to

believe that K.D. would be harmed by Swafford.
74.

Superintendent and Principal Gannon negligently performed their mandatory duty

under § 620.030.
75.

As a result of Superintendent and Principal Gannon’s negligence per se, K.D.

suffered damages.

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COUNT V
Negligence
K.D. v. Superintendent Adkins (individual capacity) and Principal Gannon (individual
capacity)
76.

Under Kentucky law, the “special relationship . . . formed between

a school district and its students imposes an affirmative duty on the district, its faculty, and its
administrators to take all reasonable steps to prevent foreseeable harm to its students.” Williams
v. Kentucky Dep't of Educ., 113 S.W.3d 145, 148 (Ky. 2003).
77.

Superintendent Adkins and Principal Gannon owed K.D. a duty of care in the

retention and supervision of Swafford and for the safety of all students.
78.

Superintendent Adkins and Principal Gannon owed a duty to notify K.D., her

parents, and the parents of all students of the substantial risk of harm posed by Swafford.
79.

Superintendent Adkins and Principal Gannon had a duty to warn K.D., her

parents, and all students and parents if a school employee under their control and supervision
posed an unreasonable risk of harm.
80.

Superintendent Adkins and Principal Gannon knew or reasonably should have

known that Swafford was unfit for the job and that his placement or retention in that job created
an unreasonable risk of harm to students.
81.

Superintendent Adkins and Principal Gannon failed to exercise reasonable care

for the safety of students.
82.

Superintendent Adkins and Principal Gannon negligently retained and supervised

Swafford as a janitor at Belfry County High School.
83.

Superintendent Adkins and Principal Gannon failed to notify K.D., her parents,

and the parents of all students that Swafford posed a substantial risk of harm.
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84.

Superintendent Adkins and Principal Gannon negligently failed to warn K.D., her

parents, and all other students and parents, that Swafford posed an unreasonable risk of harm to
students.
85.

As a result of Superintendent Adkins and Principal Gannon’s negligence, K.D.

suffered damages.
COUNT VI
Civil Battery
K.D. v. Swafford (individual capacity)
86.

“A sexual assault . . . is a battery,” Ten Broeck Dupont, Inc. v. Brooks, 283

S.W.3d 705, 727 (Ky. 2009), and “[b]attery is an intentional tort,” Vitale v. Henchey, 24 S.W.3d
651, 656 (Ky. 2000).
87.

Under Kentucky law, common law civil battery is defined as “any unlawful

touching of the person of another, either by the aggressor himself, or by any substance set in
motion by him.” Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000) (quoting Sigler v. Ralph, 417
S.W.2d 239, 241 (Ky. 1967))
88.

Swafford acted intentionally to cause a harmful or offensive contact to K.D.

89.

Swafford intentionally and unlawfully touched K.D.

90.

As a result of Swafford’s intentional and unlawful touching, K.D. suffered

damages.
WHEREFORE, the Plaintiff respectfully requests the following relief:
1. Trial by jury on all issues so triable;

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2. Judgment against defendants, jointly and severally, for compensatory damages in an
amount to be determined at trial, plus court costs, expenses, and attorney’s fees in this
action;
3. Prejudgment and post judgment interest at the maximum allowable rates at law;
4. Punitive damages against the individual defendants in their individual capacities; and
5. Any other relief to which Plaintiff may seek or be entitled under law or equity.

Plaintiff,
By Counsel,

/s/ Michael B. Hissam
Michael B. Hissam (KY Bar No. 97147)
Bailey & Glasser LLP
209 Capitol Street
Charleston, WV 25301
(304) 345-6555
mhissam@baileyglasser.com

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