Preschooler II v. Clark County School Bd.

Decision Date21 March 2007
Docket NumberNo. 04-16891.,04-16891.
Citation479 F.3d 1175
PartiesPRESCHOOLER II; Jane Roe, Plaintiffs-Appellees, v. CLARK COUNTY SCHOOL BOARD OF TRUSTEES; Clark County School District; Keith Rheault; State of Nevada; State of Nevada Department of Education, Defendants, and Kay Davis; Carlos Arturo Garcia; Charlene A. Green; Michael S. Harley; Darryl Wyatt; Kathleen Lisanti, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Mark E. Ferrario and Tami D. Cowden, Kummer Kaempfer Bonner Renshaw & Ferrario, Las Vegas, NV, for the appellants.

Niels L. Pearson and Marianne C. Lanuti, Selman Breitman, LLP, Las Vegas, NV, for the appellees.

Appeal from the United States District Court for the District of Nevada; Roger L. Hunt, District Judge, Presiding. D.C. No. CV-04-00348-RLH.

Before TASHIMA and McKEOWN, Circuit Judges, and DAVID A. EZRA*, District Judge.

McKEOWN, Circuit Judge.

This case arises from the claimed physical abuse of a four-year old disabled child in a public school setting. The child, Preschooler II, and his mother, Jane Roe, filed suit against the state, school district, school board and various school personnel ("School Officials") under the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Individuals with Disabilities Education Act (IDEA), and 42 U.S.C. § 1983.1 Preschooler II claims abuse ranging from being beaten, slapped, and body slammed to unexplained bruises and shoeless walks from the school bus to the classroom. The district court denied the School Officials' motion to dismiss based in part on qualified immunity. In this interlocutory appeal, the School Officials properly raise only the issue of qualified immunity for the § 1983 claims.2

Not long ago, our court acknowledged "that the right of a student to be free from excessive force at the hands of teachers employed by the state was clearly established as early as 1990." Doe v. State of Hawaii Dep't of Educ., 334 F.3d 906, 910 (9th Cir.2003). At this stage of the proceedings, we construe the allegations in the light most favorable to Preschooler II. See, e.g., Beier v. City of Lewiston, 354 F.3d 1058, 1063 (9th Cir.2004). Because certain of the allegations, such as the unexplained bruising and shoeless walks, do not rise to the level of constitutional claims, we reverse the district court's denial of qualified immunity on those claims. We affirm the district court's denial of qualified immunity on the remaining claims.

BACKGROUND3

In the 2002-2003 school year, Preschooler II was four years old. He had been diagnosed with tuberous sclerosis, a neurological disease that causes tumors to form in various organs, primarily in the brain, eyes, heart, kidneys, skin, and lungs. Symptoms include seizures, rashes, and skin lesions. In addition, Preschooler II suffers from non-verbal autism. Based on these diagnoses, Preschooler II is eligible for special education services under the IDEA. See 20 U.S.C. § 1400.

In compliance with the IDEA and state regulations, Preschooler II began his schooling at a special education program known as Kids Intensive Delivery of Services (KIDS) at the Betsy Rhodes School in Clark County, Nevada. The program was staffed by one teacher, Kathleen LiSanti, and various teacher assistants.

LiSanti allegedly physically abused Preschooler II on repeated occasions. The claimed abuses started in September 2002, and continued until early April 2003. Preschooler II transferred to another elementary school soon after. The alleged incidents of abuse are as follows:4

(1) "Preschooler II was assaulted at circle time by Defendant LiSanti, when Defendant LiSanti grabbed Plaintiff Preschooler II's hands and slapped him repeatedly . . . ." LiSanti beat Preschooler II, hitting his head and face. This event was especially traumatic for Preschooler II because of his tuberous sclerosis diagnosis, which causes tumors in the eyes and brain. Preschooler II alleges that LiSanti admitted wrongdoing when she later "apologized for this assault and battery...."

(2) LiSanti maliciously body slammed Preschooler II into a chair, an event witnessed by a detective who testified at Preschooler II's administrative hearing.

(3) On four occasions, LiSanti forced Preschooler II to "walk without shoes across the asphalt" from the school bus to the classroom.

(4) On one occasion, LiSanti documented in writing noticeable bruising to Preschooler II's arms. Beyond the bruises documented by LiSanti, Preschooler II sustained unspecified bruising to the inner thigh regions in addition to a thick fingernail scratch to his neck region.

Preschooler II alleges that the School Officials were on notice of the violent and unlawful conduct ongoing in the classroom before and during the time Preschooler II was abused, and that they failed to act to prevent further harm to him. Preschooler II's Amended Complaint relates several events to support the notice allegation. These incidents allegedly provided notice of the ongoing abuses to the school principal, Darryl Wyatt, and district personnel who, according to Preschooler II, failed to report the incidents as required by statute, or to correct the situation. In addition to Wyatt, Compliance Director Michael Harley, Associate Superintendent Charlene Green, Superintendent Carlos Garcia, and Special Education Specialist Kay Davis allegedly knew of and failed to report or remediate possible child abuse of Preschooler II.

Preschooler II's mother was suspicious that something was negatively affecting the child at school because he had begun to develop violent behavior not previously exhibited. Nonetheless, she was not informed of any of the specific alleged abuses until early April 2003, when Principal Wyatt first told her that her son had been battered by LiSanti. LiSanti apparently was trying to teach Preschooler II not to swat himself, a behavior incident to his disability. Months after the first abuse report, LiSanti was placed on administrative leave.

After unsuccessful administrative proceedings, Preschooler II's mother filed suit in federal court. Preschooler II's eight causes of action are as follows: (1) Petition for Judicial Review, Declaratory and Equitable Relief, and Claim for Attorney's Fees and Costs; (2) Violation of the Americans with Disabilities Act; (3) Violation of the Rehabilitation Act; (4) Violation of 42 U.S.C. § 1983 Based on the Fourth and Fourteenth Amendments; (5) Monnel/Canton Claims; (6) Assault, Battery and Use of Aversive Interventions; (7) Negligence Claims; and (8) Negligent Failure to Report.

The School Officials moved to dismiss Preschooler II's second, third, fourth, fifth and eighth causes of action for failure to state a claim upon which relief can be granted. They also asserted qualified immunity with respect to the fourth cause of action, § 1983. In addition, the motion requested a declaratory judgment that the enforcement provisions of the Nevada Reporting Statute, § 388.521, are not "state educational requirements" under the IDEA.

The district court denied the motion to dismiss as to all claims, denied qualified immunity, and declined to reach whether Nevada's reporting requirements were incorporated into the IDEA. The court determined that qualified immunity was not warranted because Preschooler II had alleged conduct sufficient to support a claim for constitutional deprivation under the Fourth and Fourteenth Amendments and violations of clearly established law. See Roe v. Nevada, 332 F.Supp.2d at 1347 (D.Nev.2004). School Officials LiSanti, Wyatt, Garcia, Green, Harley, and Davis filed this interlocutory appeal on the qualified immunity issue.

ANALYSIS

We review de novo the district court's denial of qualified immunity. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.2002) (citing Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994)). Government officials do not enjoy qualified immunity from civil damages if their conduct violates "clearly established constitutional or statutory rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

In analyzing whether the School Officials are entitled to qualified immunity, we address two sequential questions. First, we inquire whether, taken in the light most favorable to the party asserting the injury, that party has established a violation of a federal right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Assuming this threshold inquiry is satisfied, we consider whether the School Officials' conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). The clearly established test is satisfied if "in light of pre-existing law the unlawfulness [is] apparent." Id. Qualified immunity will not protect the "plainly incompetent" or those "who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quotations omitted).

I. PHYSICAL ABUSE OF PUBLIC SCHOOL STUDENT—DEFENDANT LISANTI

Our initial task is to determine whether the physical abuse allegations rise to the level of constitutional violations. We begin with the principle "that excess force by a [school official] against a student violate[s] the student's constitutional rights." P.B. v. Koch, 96 F.3d 1298, 1302-03 (9th Cir.1996). The consequences of a teacher's force against a student at school are generally analyzed under the "reasonableness" rubric of the Fourth Amendment, although historically courts applied substantive due process analysis under the Fourteenth Amendment's "shocks the conscience" test. See Doe, 334 F.3d at 908-09 (9th Cir.2003) (quoting New Jersey v. T.L.O., 469 U.S. 325, 342, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)) (applying the Fourth...

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