F. v. Portsmouth, NH School District SAU 52 et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
T.F. by p/n/f Shannon F.
v. Case No. 14-cv-368-JL
Portsmouth School District
SAU 52, et al.
REPORT AND RECOMMENDATION
The plaintiff, Shannon F., brings this civil rights action
under 42 U.S.C. § 1983 as parent and next friend of her minor
daughter, T.F. T.F. was sexually assaulted by defendant Kenneth
Kimber when she was a ninth-grader at Portsmouth High School.
At the time of the assault, Kimber was employed by the school as
an Information Technology (“IT”) technician. The plaintiff
alleges that Kimber and the Portsmouth School District SAU 52
(“School District”) violated her rights under the Fourth and
Fourteenth Amendments to the United States Constitution.
On October 28, 2014, the Clerk of Court entered default
against Kimber for failure to appear. On July 12, 2016, after
nearly two years of litigation, the district judge entered
summary judgment in favor of the School District. See July 12,
2016 Order (doc. no. 49). The plaintiff then moved, under
Federal Rule of Civil Procedure 55, for an entry of default
judgment against Kimber. (Doc. no. 52.) This motion was
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referred to the undersigned magistrate judge, who, subsequent to
a telephonic conference with plaintiff’s counsel, issued a
procedural order requesting additional briefing related to the
motion. (Doc. no. 53.) Plaintiff’s counsel submitted this
briefing on December 14, 2015 (hereinafter “supplemental
briefing”). (Doc. no. 57.)
For the reasons discussed below, the court recommends that
the district judge deny the plaintiff’s motion for default
judgment.
Standard of Review
When a defendant is defaulted for failing to appear or
respond, he is “taken to have conceded the truth of the factual
allegations in the complaint . . .” Ortiz-Gonzalez v. Fonovisa,
277 F.3d 59, 62-63 (1st Cir. 2002) (quoting Franco v. Selective
Ins. Co., 184 F.3d 4, 9 n. 3 (1st Cir. 1999). Before entering a
default judgment, however, the court “may examine a plaintiff’s
complaint, taking all well-pleaded factual allegations as true,
to determine whether it alleges a cause of action.” Ramos-
Falcón v. Autoridad de Energía Electríca, 301 F.3d 1, 2 (1st
Cir. 2002) (quoting Quirindongo Pacheco v. Rolon Morales, 953
F.2d 15, 16 (1st Cir. 1992)). “[A] court may also consider any
affidavits or evidence on the record.” Amguard Ins. Co. v.
Santos Remodeling, Inc., No. 14-cv-14745-FDS, 2016 WL 424961, at
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*1 (D. Mass. Feb. 3, 2016) (citing KPS & Assocs., Inc. v.
Designs by FMC, Inc., 318 F.3d 1, 17–20 (1st Cir. 2003)). At
its discretion, the court may “conduct hearings . . .
to . . . establish the truth of any allegation by
evidence . . . ,” Fed. R. Civ. P. 55(b)(2)(c), though “only if
the court has made its requirements known in advance to the
plaintiff, so that [she] could understand the direction of the
proceeding and marshal[] such evidence as might be available to
[her,]” Ramos-Falcón, 301 F.3d at 3.
Background
I. Allegations in the Complaint
As is relevant to her claim against Kimber, the plaintiff
makes the following allegations in her amended complaint. T.F.
was born in 1998. First Amend. Compl. ¶ 8 (doc. no. 16).
During the relevant period, she was a student at Portsmouth High
School. Id. At that time, Kimber was employed by the School
District as an IT technician at Portsmouth High School. Id. ¶
9.
During the 2012–2013 academic year, Kimber “use[d] his
position of trust and authority, arising solely and directly
from his position as an employee of [the School District], to
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groom [T.F.1]” Id. ¶ 13. Between January of 2013 and February
13, 2013, Kimber “began to sexually, emotionally, and mentally
abuse T.F.” Id. This abuse “occurred both on and off school
property and began through the use of school resources.” Id.
The abuse continued until Kimber was arrested. Id. ¶ 14.
On October 7, 2013, Kimber pleaded guilty to felonious sexual
assault and other crimes in Rockingham County Superior Court.
Id. ¶ 15. On November 14, 2013, he was sentenced to three-to-
eight years of incarceration. Id.
The plaintiff alleges that Kimber was “acting under color
of state law.” Id. ¶ 16. She further alleges that Kimber’s
conduct “was not done in good faith and was done intentionally,
maliciously, and sadistically, with a deliberate indifference to
the rights of [T.F.]” and was done “unnecessarily and wantonly
with the purpose of causing harm and inflicting pain . . . in
violation of [T.F.’s] constitutional rights to bodily integrity,
equal protection, and due process . . . .” Id.
II. Other Facts in the Record
This case is somewhat unique in that considerable
litigation occurred after Kimber was defaulted. Accordingly,
1 In her first amended complaint, the plaintiff refers to T.F. by
her initials, but without separating periods. Going forward,
the court will separate T.F.’s initials with periods without
otherwise indicating an alteration of the quoted source.
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there are documents in the record from which a more complete
narrative of the events alleged by the plaintiff can be
extracted. These documents include, among other things, several
affidavits and the deposition testimony of Shannon F., T.F.,
Kimber, and others. From these documents, the court constructs
the following factual narrative.2
On August 10, 2009, the School District officially hired
Kimber as an IT Technician. McDonough Aff. ¶ 13, March 19, 2015
(doc. no. 22-5) (“McDonough Aff. I”). In this capacity, Kimber
was involved in “the setup and maintenance of technology
equipment and software for use by students and staff . . . and
assisting the Network Administrator service the information
technology needs of the [School] District.” Id. ¶ 15. This job
description required little, if any, contact with students on
school property, and no contact with students off school
grounds. Id. ¶¶ 16-17; Lotz Aff. ¶ 5, March 23, 2016 (doc. no.
42-3); see also McDonough Dep. at 48, September 21, 2016 (doc.
no. 43-5). The school district issued Kimber a laptop that he
was permitted to take home with him after school hours. Lotz
Aff. ¶ 9.
2 In her supplemental briefing, the plaintiff contends that the
court need not consider additional facts in the record. (Doc.
no 57, at 5.) The court rejects this argument for the reasons
discussed in greater detail below. See infra at 16-18.
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T.F. met Kimber when she was a student at Portsmouth Middle
School. T.F. Dep. 78–79, Aug. 25, 2015 (doc. no. 43-2). She
first encountered him “wander[ing] the hallways” and
“interacting with students . . .” Id. She had further
encounters with him when she was on the eighth grade basketball
team, as Kimber was in apparent relationship with T.F.’s
basketball coach and would often be present at the team’s
practices. Id. at 78. At some point during this period, T.F.
came home from school and informed her mother, Shannon F., that
she had met Kimber, who had been a classmate of Shannon F.’s at
Portsmouth High School. Shannon F. Dep. at 43-44, Aug. 25, 2015
(Doc. no. 43-4). Shannon F. also independently observed Kimber
at the middle school during a visit with T.F.’s teachers when
T.F. was in seventh grade. Id. ¶ 37–38.
In the fall of 2012, T.F. matriculated to Portsmouth High
School for ninth grade. T.F. Dep. at 82. Once at the high
school, T.F. continued to encounter Kimber in the hallways. Id.
at 81–82. At some point during the first half of the school
year, Kimber sent a “friend request” to T.F. on Facebook. T.F.
Dep. at 68–69, 71. T.F. was initially “confused” by this
request, as she understood there to be a school policy that
prohibited a school employee and a student from being “friends”
on Facebook until after the student graduated. Id. at 69–72.
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She ultimately accepted the request because she “didn’t think
any harm could come of it.” Id.
In January of 2013, Kimber started sending Facebook
messages to T.F. Id. at 87. Kimber and T.F. exchanged phone
numbers, and Kimber began to send T.F. text messages. T.F. Aff.
at 1, Aug. 12, 2016 (doc. no. 52-2). T.F. received messages
from Kimber while at home, and believes that she sometimes also
received message from Kimber while at school. T.F. Dep. at 88.
Kimber soon started sending Facebook messages to T.F. with
naked photos of himself, including photos of his penis. Id. at
78, 87–88; T.F. Aff. at 1. T.F. did not bring these photos to
the attention of Shannon F. or anyone at the school. T.F. Dep.
at 85. Nor did she, with one possible exception, inform any of
her friends of these messages. Id. At some point, Kimber
requested that T.F. send him photos in return. T.F. Aff. at 1.
T.F. complied by sending Kimber a Facebook message that included
a naked photo of herself without her face showing. T.F. Dep. at
77–78.
In late January or early February of 2013, Kimber sent T.F.
a message on Facebook inviting her to his apartment to watch the
Super Bowl. Id. at 88–89, 93–94; T.F. Aff. at 1. T.F. was at
home when she received this message. T.F. Dep. at 94. T.F.
agreed to meet Kimber and, on Super Bowl Sunday, walked to the
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“Sherburne Store” a few blocks from her house in Portsmouth.
Id. at 89, 94; T.F. Aff. at 1. Kimber picked T.F. up and
brought her to his apartment. T.F. Dep. at 89. Kimber gave
T.F. a tour of his apartment. T.F. Aff. at 1. He then brought
her to his bedroom, where they had a sexual encounter. Id.; see
also T.F. Dep. at 89–90. T.F. was fourteen years old at the
time. T.F. Aff. at 1. After the assault, Kimber dropped T.F.
back off at the Sherburne Store. T.F. Dep. at 89. Kimber
pursued additional sexual encounters with T.F., which she
refused. Id. at 88.
At some point in late January or early February of 2013,
several of T.F.’s classmates “hacked” into her Facebook account
and discovered messages T.F had exchanged with Kimber. T.F.
Dep. at 51–54. Rumors began spreading at the high school
regarding an inappropriate relationship between T.F. and Kimber.
Id. at 50–51; T.F. Aff. at 1. In early February of 2013, after
her sexual encounter with Kimber, T.F. sent an e-mail to several
of her teachers identifying herself as the student subject to
the rumors. T.F. Dep. at 90-92; Donovan Dep. at 15, Dec. 9,
2015 (doc. no. 45-3).
The Portsmouth Police Department began investigating Kimber
for inappropriate contact with a student. McDonough Aff. ¶ 6,
March 17, 2016 (doc. no. 42-2) (“McDonough Aff. II”). On
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February 11, 2013, law enforcement informed the School District
of its investigation. Id. The School District suspended Kimber
on February 12, 2013. Id. ¶ 7; T.F. Aff. at 1. The Portsmouth
Police Department arrested Kimber that same day. McDonough Aff.
II ¶ 8. On February 19, 2013, the School District informed
Kimber that his employment was terminated, with a retroactive
effective date of February 13, 2013. Id. ¶ 9.
After Kimber’s arrest, Thomas Lotz, director of IT for the
School District, conducted a search of Kimber’s computer. Lotz
Dep. at 33-34, Dec. 9, 2015 (doc. no. 43-3); Bernier Aff. at 1,
June 29, 2016 (doc. no. 47). Lotz discovered a hidden file
stored on Kimber’s hard drive, which automatically backed up to
the School District server, containing several pornographic
images, including images of Kimber. Lotz Dep. at 33–35, 38–42;
see also Bernier Aff. at 1. There is no indication in the
record that any images of T.F. were contained in this folder.
Nor is there any indication whether any of the images in this
folder were the same as the photographs Kimber sent to T.F.
Additionally, there is at least some indication in the
record that Kimber may also have sent T.F. graphic photographs
via e-mail. See McDonough Dep. at 25. But see Lotz Dep. at 43;
Heffner Dep. at 77-78, 80–81 (Mar. 8, 2016) (doc. no. 43-6).
Beyond certain inconsistent references to such e-mail, there is
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no indication, beyond speculation by T.F. and Shannon F., that
they were sent via a School District e-mail account. See
Heffner Dep. at 77; Lotz Dep. at 43; Lotz Aff. ¶ 8.
Finally, it is plain from the record that access to
Facebook was blocked on the School District’s network, see T.F.
Dep. at 59; Kimber Dep. at 25, 28, 35, May 4, 2015 (Doc. no. 43-
1); Lotz Aff. ¶ 10-11; see also Heffner Dep. at 109, but that
Facebook could be accessed while at the school through an
independent network such as a mobile network, Lotz Aff. ¶ 12;
Heffner Dep. at 109; T.F. Dep. at 59. There is no specific
indication in the record that Kimber sent nude photographs to
T.F. or that T.F. accessed these photographs or sent photographs
of herself to Kimber through the School District network or
during school hours. See Lotz Aff. ¶ 13–15.
Kimber ultimately pleaded guilty in state court to
felonious sexual assault and other charges. See Kimber Dep. at
50–51. He was sentenced to a term of incarceration. See id.
Discussion
As noted, the plaintiff brings this action under 42 U.S.C.
§ 1983. To state a claim for relief in a § 1983 action, a party
must “establish that [she was] deprived of a right secured by
the Constitution or laws of the United States, and that the
alleged deprivation was committed ‘under color of state law.’”
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Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).
“It is beyond question that the Fourteenth Amendment protects
the right to bodily integrity and that right is necessarily
violated when a state actor sexually abuses a schoolchild.” Doe
v. Fournier, 851 F. Supp. 2d 207, 219 (D. Mass. 2012), on
reconsideration in part (Mar. 20, 2012) (internal quotations and
ellipsis omitted) (quoting Doe v. Taylor Indep. Sch. Dist., 15
F.3d 443, 451–52 (5th Cir. 1994)) (other citations omitted).
Thus, the operative question here is whether Kimber was acting
under the color of state law when he sexually assaulted T.F.
A public employee acts under color of state law when he
“exercise[s] power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988)
(internal quotations omitted) (citation omitted). “[T]he under-
color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or
wrongful.” Am. Mfrs. Mut. Ins. Co., 526 U.S. 40, 50 (internal
quotations omitted) (citations omitted).
This court has previously held that “public school
officials . . . act under color of state law when exercising
their official functions.” Douglass v. Londonderry Sch. Bd.,
413 F. Supp. 2d 1, 2 (D.N.H. 2005). Yet there is little
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additional precedent from either this district or, seemingly,
the First Circuit, defining what constitutes an “official
function” for a public school employee.
Courts from other jurisdictions have held that “it is clear
that a public school teacher acts under color of state law when
he commits an act of assault or abuse against a student in his
class, on school property and during the school day when the
student is under the teacher’s control or authority.” Hackett
v. Fulton Cty. Sch. Dist., 238 F. Supp. 2d 1330, 1356 (N.D. Ga.
2002) (citing, as examples, cases from the Third, Sixth, and
Eighth Circuits). But when a public school teacher’s employment
“merely facilitates the development of a relationship” with a
student, and the teacher later, “on his own time and independent
from his official duties, commits an assault . . . ,” the
teacher “is not acting under color of state law.” Id.
In determining where a particular assault of a student fits
on this spectrum, several courts ask whether a sufficient
“nexus” exists between the activity out of which the assault
arose and the assaulter’s duties and obligations as a public
school official. See, e.g., Roe v. Humke, 128 F.3d 1213, 1217
(8th Cir. 1997); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443,
452 (5th Cir. 1994); D.T. by M.T. v. Indep. Sch. Dist. No. 16 of
Pawnee Cty., Okl., 894 F.2d 1176, 1188 (10th Cir. 1990); see
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also Wilson v. Luttrell, 230 F.3d 1361 (6th Cir. 2000); Doe v.
Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 66 (D. Me. 1999);
Doe v. Manson, No. 99-262-P-DMC, 2000 WL 893396, at *3 (D. Me.
June 22, 2000). Though this is inherently a fact-specific
inquiry, a review of these decisions suggests the following
dichotomy. One the one hand, a “nexus” plainly exists if the
abuse occurred, in whole or in part, at school, during a school
function, or as a direct extension of a school function. In
contrast, if the abuse did not occur on school property and
cannot be directly tied to some official school function (for
example, a sports team or an after-school club), then it did not
occur under color of state law. Absent any First Circuit
authority to the contrary, the court will analyze the present
case through this prism.
Preliminarily, the court concludes that a further
evidentiary hearing, as permitted by Rule 55(b)(2), is
unnecessary in this case. The allegations in the plaintiff’s
first amended complaint and the facts in the record are more
than sufficient for the court to resolve the plaintiff’s motion.
Moreover, the plaintiff noted in her supplemental briefing that
she was not seeking further oral argument. (Doc. no. 57, at 5.)
The court turns, then, to the facts alleged in the
plaintiff’s first amended complaint. When determining whether a
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default judgment is appropriate under Rule 55, the court may, as
noted above, “examine a plaintiff’s complaint, taking all well-
pleaded factual allegations as true, to determine whether it
alleges a cause of action.” Ramos-Falcón, 301 F.3d at 2
(citation omitted). “Even after default, however, it remains
for the court to consider whether the unchallenged facts
constitute a legitimate cause of action, since a party in
default does not admit conclusions of law.” 10A Charles A.
Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and
Procedure § 2688.1 (4th ed.); see also DIRECTV, Inc. v. Hoa
Huynh, 503 F.3d 847, 854 (9th Cir.2007); Black v. Lane, 22 F.3d
1395, 1407 (7th Cir. 1994); Joe Hand Promotions, Inc. v. Patton,
No. 10-cv-40242-FDS, 2011 WL 6002475, at *4 (D. Mass. Nov. 29,
2011).
Here, the plaintiff’s allegations against Kimber are
general and conclusory. For instance, the plaintiff alleges
that Kimber “used his position of trust and authority” as a
School District employee “to groom T.F.” Yet beyond this
assertion, the plaintiff does not allege any specifics as to how
this grooming occurred or how it was furthered through Kimber’s
employment. Similarly, the plaintiff alleges that Kimber “began
to sexually, emotionally, and mentally abuse T.F” and that this
abuse “occurred both on and off school property and began
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through the use of school resources.” This allegation, which
hews closely to the basic legal requirements to find that a
school official acted “under color of state law,” can at least
arguably be construed as a restatement of one of the essential
elements of a § 1983 claim rather than a well-pleaded allegation
of fact.3
The court need not determine where these allegations fall,
however, because to the extent they establish that Kimber acted
under color of state law, such a conclusion is belied by the
undisputed evidence in the record. For instance, contrary to
the plaintiff’s assertion that Kimber’s abuse of the plaintiff
occurred “both on and off school property,” there is no dispute
in the record that Kimber and T.F. had a single sexual encounter
and that it occurred during the weekend and away from school
property. There is similarly no dispute that Facebook was
blocked on the School District’s network, and there is nothing
in the record to indicate that Kimber ever sent T.F. photographs
either over the school network, during school hours, through his
school-issued e-mail address, or using his school-issued
computer. And while it is undisputed that T.F. met Kimber
3 The court does not address the allegations in paragraph 16 of
the plaintiff’s first amended complaint as they are clearly
nothing more than conclusions of law.
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through his affiliation with the school, and T.F. stated in her
deposition testimony that she believes she “sometimes” received
messages from Kimber while at school, there is nothing in the
record supporting a conclusion that Kimber abused T.F. on school
property or in connection with a school function, or that he
otherwise “groomed” her during their interactions at school.4
Simply put, a careful review of the considerable evidence in the
record fails to reveal a sufficient “nexus” between Kimber’s
wrongful conduct and his role as a School District employee.
This conclusion is supported by the district judge’s
findings in his order on the School District’s motion for
summary judgment. In that order, the district judge, reviewing
the same general universe of evidence, specifically noted “the
absence of any evidence that Kimber interacted with, stalked, or
groomed T.F., or any other student, while in school hallways or
the school’s exercise facilities.” July 12, 2016 Order at 10.
This finding is unequivocal, and is consistent with the
undersigned’s own review of the evidence in the record. The
4 It is well-established in the record that a folder was found on
Kimber’s school computer containing nude photos of himself and
others. As noted, however, there is nothing in the record to
suggest that any of these photos were the same as those sent by
Kimber to T.F. or received by Kimber from T.F. Thus, it is
unclear to the court how the existence of this folder relates to
the plaintiff’s claims against Kimber individually.
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court accordingly cannot ignore this finding in reaching its
present recommendation.
The plaintiff contends that the court can limits is review
to the allegations in her first amended complaint. (Doc. no 57,
at 5.) The court disagrees. For one, the District of
Massachusetts, citing First Circuit precedent, has held that “a
court may . . . consider any affidavits or evidence on the
record.” Amguard Ins. Co., 2016 WL 424961, at *1 (citing KPS &
Assocs., Inc., 318 F.3d at 17–20). The court reads the cited
First Circuit opinion to support this holding and finds it to be
persuasive.
The court is also persuaded by the material similarities
between the default judgment standard under Rule 55 and the
motion to dismiss standard under Rule 12(b)(6).5 In the latter
context, courts are allowed to consider, among other things,
“documents the authenticity of which are not disputed by the
parties” and “documents central to the plaintiff’s claims.” GE
5 Compare Ramos-Falcón, 301 F.3d at 2 (noting that under Rule 55,
the court “may examine a plaintiff’s complaint, taking all well-
pleaded factual allegations as true, to determine whether it
alleges a cause of action”) with Foley v. Wells Fargo Bank,
N.A., 772 F.3d 63, 71 (1st Cir. 2014) (noting that under Rule
12(b)(6), the court must accept the factual allegations in the
complaint as true, construe reasonable inferences in the
plaintiff’s favor, and “determine whether the factual
allegations in the plaintiff’s complaint set forth a plausible
claim upon which relief may be granted”).
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Mobile Water, Inc. v. Red Desert Reclamation, LLC, 6 F. Supp. 3d
195, 199 (D.N.H. 2014) (quoting Rivera v. Centro Medico de
Turabo, Inc., 575 F.3d, 10, 15 (1st Cir. 2009)). The court sees
no reason why it cannot consider similar documents in the
present context, especially when, as here, those documents
directly refute material allegations furthered in the
plaintiff’s complaint.
The court turns briefly to the plaintiff’s supplemental
briefing. In this document, the plaintiff primarily relies on
two cases — Lillard v. Shelby County Board of Education, 76 F.3d
716 (6th Cir. 1996) and Stoneking v. Bradford Area School
District, 667 F. Supp. 1088 (W.D. Pa. 1987)6 — in support of her
contention that an entry of default judgment against Kimber is
warranted. While both of these decisions support the premise,
accepted by this court, that the sexual assault of a student by
a teacher can constitute a violation of the Fourteenth
Amendment, neither supports a conclusion that Kimber acted under
color of state law here. Indeed, in both of these cases the
alleged constitutional violations occurred on school property
6 Aff’d, 856 F.2d 594 (3d Cir. 1988), cert. granted, judgment
vacated sub nom. Smith v. Stoneking, 489 U.S. 1062 (1989).
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during school hours. See Lillard, 76 F.3d at 726; Stoneking,
667 F. Supp. at 1090–91.
Nor, too, does the court accept the plaintiff’s argument
that collateral estoppel requires an entry of default judgment
in this case. The plaintiff argues that Kimber’s guilty plea
establishes that the sexual assault occurred, and that the court
must therefore enter default judgment on this basis. There is
no dispute, for the purposes of the present analysis, that
Kimber did in fact sexually assault T.F. This does not,
however, mandate an entry of default judgment against Kimber,
because his criminal conviction does not necessarily mean that
the sexual assault occurred under color of state law. Indeed,
the plaintiff has pointed to no facts from Kimber’s criminal
proceeding, and the court can identify none in the record, that
would compel a different conclusion that the one reached herein.
Conclusion
In sum, the court finds that the plaintiff’s first amended
complaint, when considered in light of the evidence in the
record, fails to establish that Kimber was acting under color of
state law when he sexually assaulted T.F. Even if the court
accepts the argument that Kimber’s employment with the School
District facilitated the development of his relationship with
T.F., the assault itself occurred outside of school hours and
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away from school property. Further, there is nothing in the
record to establish a sufficient “nexus” between Kimber’s
employment with the School District and the assault to allow
recovery under § 1983. The court accordingly recommends that
the district judge deny the plaintiff’s motion for default
judgment. (Doc. no. 52.)
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 27, 2017
cc: Lawrence A. Vogelman, Esq.
Kenneth Kimber, pro se
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