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Pollard v. Church of God In Christ Inc.

United States District Court, N.D. Texas, Amarillo Division

November 9, 2017

KIMBERLY D. POLLARD and J.S. A Minor Child, PLAINTIFFS,
v.
CHURCH OF GOD IN CHRIST, INC., an Active Domestic Tennessee Nonprofit Corporation, and CHURCH OF GOD IN CHRIST, BOARD OF BISHOPS, and BISHOP JAMES L'KEITH JONES, DEFENDANTS.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          MARY LOU ROBINSON, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Church of God in Christ, Inc.' s motion, filed August 18, 2017, for summary judgment, Plaintiff Kimberly Pollard's response thereto, and the Defendant's reply. Because the statute of limitation ran upon Plaintiffs claims long before this lawsuit was filed, summary judgment for the Defendant is granted.

         Factual Background

         This is an action brought by the alleged victim of a sexual assault against the national church by which the assailant, Bishop James L'Keith Jones, was ordained. A final default judgment against Defendant Jones was entered in the amount of $750, 000.00 in damages, plus reasonable and necessary costs in this action. That judgment is now final.

         Plaintiff Kimberly Pollard alleges direct liability against the national church - based upon its alleged negligent supervision of Bishop Jones - as well as vicarious liability for Jones' sexual assaults. Specifically, she asserts that the national church "knew or should have known of the illicit conduct that [] Jones was engaging in with Plaintiff Pollard because a basic investigation would have revealed these facts" and, because Jones allegedly worked for and was ordained by the national church, it is liable for his misconduct.

         As alleged in Plaintiff Pollard's complaint and explained in her summary judgment affidavit, Plaintiff states that she had her first sexual encounter with then-pastor Jones in 1995 in New Mexico, when she was 16 years of age. The age of consent is 16 in New Mexico. In about 2002, when Plaintiff was 23 years old, she states that she stopped seeing Jones and "[their] communication came to a halt, with phone calls, emails and texts on each other's birthdays" or just "small talk" conversations "here and there." In November of 2014 - twelve years later - Jones and Plaintiff Pollard, then age 35, began a second, consensual, sexual affair in Texas. Plaintiff ended that affair in 2016 when she states she realized that Jones would not divorce his wife and marry her, and was allegedly "grooming" her daughter for a future sexual affair - as she then realized he had groomed her when she was a minor. Jones married his current wife before 2002, during the course of Plaintiffs first affair with him.

         Pollard first reported the sexual misconduct by Jones to the national office of the church during the summer of 2016. Pollard characterizes Jones's underlying conduct as sexual assault, sexual abuse, and sexual molestation of a minor, where multiple assaults continued well into Plaintiffs adulthood.

         Summary Judgment Standards

         "The Court may terminate litigation by rendering a summary judgement where no genuine issue of material fact exists and the moving party is entitled to judgement as a matter of law." Honore v. Douglas, 833 F.2d 565, 567 (5th Cir. 1987)(citations omitted). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)(initial burden is on movant to show entitlement to summary judgment with competent evidence); Fed. R. Civ. Pro. 56(c)./[1] "Summary judgement disposition is inappropriate if the evidence before the court, viewed as a whole, could lead to different factual findings and conclusions." Honore v. Douglas, 833 F.2d at 567. This Court must resolve "all factual uncertainties and mak[e] all reasonable inferences in favor of the nonmoving party." See Id. Accord Bienkow ski v. American Airlines, 851 F.2d 1503, 1504 (5th Cir. 1988).[2] Such a finding may be supported by the absence of evidence necessary to establish an essential element of the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 82, 121 L.Ed.2d 265 (1986); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert, denied, 954 U.S. 1125, 113 S.Ct. 82, 121 L.Ed.2d46 (1992).

         Discussion and Analysis

         Assuming Plaintiff Pollard properly alleges a non-consensual sexual assault cause of action, the Texas statute of limitations for personal injury in such sexual assault cases is five years beginning from when the cause of action accrued. See Tex. Civ. Prac. & Rem. Code Section 16.0045(a). However, the statute of limitations is tolled until a minor plaintiff turns eighteen. Id. Therefore Plaintiff s limitations period began to run on January 29, 1997, when she turned eighteen. Pollard's sexual assault-based claims accrued when each sexual assault occurred. By Plaintiffs admission, they completely ended in 2002 when she terminated the first affair with Jones, when she was age 23.

         Pollard complains of conduct occurring in two multi-year time periods, which were separated by twelve years: from 1995 into 2002, and beginning again in 2014 until finally ending in 2016. Pursuant to Texas' five-year limitations period for sexual assault-based claims, all of her sexual assault-based claims related to Jones' misconduct occurring between 1995 and 2002 therefore expired at the latest sometime during 2007. She filed this lawsuit in 2017 - approximately nine years too late. The summary judgment evidence in this record reflects that the parties' conduct during the second time period, from 2014 and ending in 2016, was consensual and occurred when the Plaintiff was in her mid-thirties, and still willing and hoping to marry then-Bishop Jones.

         Pollard claims that she did not discover the causal connection between Jones' sexual abuse and her depression and other emotional injuries she suffered until 2016, when she first realized she had been "groomed" as a minor by Jones for their affair and that the affair had caused her ongoing mental depression. However, in Texas a sexual assault is an impermissible and intentional invasion of the victim's person, and is an injury then actionable independently from resulting mental suffering or other physical injury. See Doe v. St. Stephen's Episcopal Sck, 382 Fed.Appx. 386, 389 (5th Cir. 2010) (quoting Harnedv. E-Z Fin. Co., 151 Tex. 641, 254 S.W.2d 81, 85 (Tex. 1953)).

         It is undisputed that Pollard has not pled that Jones's conduct was a tort continuing into 2014 and through 2016, given the 12 year complete absence of a sexual relationship between 2002 and into 2014. She has not argued ...


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