Redding v. Safford Unified School Dist. # 1

• Decision Date: 21 September 2007
• Docket Number: No. 05-15759.,05-15759.
• Citation: 504 F.3d 828
• Parties: April REDDING, legal guardian of minor child, Plaintiff-Appellant, v. SAFFORD UNIFIED SCHOOL DISTRICT # 1; Kerry Wilson, husband; Jane Doe Wilson, wife; Helen Romero, wife; John Doe Romero, husband; Peggy Schwallier, wife; John Doe Schwallier, husband, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

504 F.3d 828

April REDDING, legal guardian of minor child, Plaintiff-Appellant, v. SAFFORD UNIFIED SCHOOL DISTRICT # 1; Kerry Wilson, husband; Jane Doe Wilson, wife; Helen Romero, wife; John Doe Romero, husband; Peggy Schwallier, wife; John Doe Schwallier, husband, Defendants-Appellees.

No. 05-15759.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2007.

Filed September 21, 2007.

Bruce G. Macdonald, G. Todd Jackson (argued), McNamara, Goldsmith, Jackson & Macdonald, P.C., Tucson, AZ, for the plaintiff-appellant.

Matthew W. Wright (argued), David K. Pauole, Holm, Wright, Hyde & Hays, P.L.C., Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Nancy Fiora, Magistrate Judge, Presiding. D.C. No. CV-04-00265-NFF.

Before: HAWKINS, SIDNEY R. THOMAS, and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge CLIFTON; Dissent by Judge THOMAS.

CLIFTON, Circuit Judge:

Plaintiff-Appellant Savana Redding, a minor, by her mother and legal guardian, appeals from the district court's order entering summary judgment in favor of Defendants Kerry Wilson, Helen Romero, Peggy Schwallier, and the Safford Unified School District, in this 42 U.S.C. § 1983 action for monetary damages. Redding alleges that Defendants violated her Fourth Amendment rights by conducting a warrantless search of her person during school hours and on school premises. Because we conclude that Defendants did not violate Redding's Fourth Amendment rights, we affirm the district court's order.

I. Background

A few years ago, Safford Middle School in Safford, Arizona, adopted a policy prohibiting the "nonmedical use, possession, or sale of drugs on school property or at school events." The term "drugs" is defined by the policy as including, but not limited to: (1) "[a]ll dangerous controlled substances prohibited by law," (2) "[a]ll alcoholic beverages," and (3) "[a]ny prescription or over-the-counter drug, except those for which permission to use in school has been granted." Although it is not entirely clear from the record, it appears that the school implemented this policy in response to a prior incident, in which a student brought a prescription drug to school and distributed it to classmates, one of whom became seriously ill and was hospitalized.¹

On August 22, 2003, Safford Middle School held a dance to commemorate the beginning of a new school year. During the dance, several staff members from the school noticed "unusually rowdy behavior" from a small group of students, including Redding, who was then thirteen years old and entering eighth grade, and her friend Marissa. The staff members also detected the smell of alcohol coming from that group. Later that evening, staff members found a bottle of alcohol and a package of cigarettes in the girls' restroom. No official action was taken against any of the students at that time.

On October 1, 2003, Jordan, another student at Safford Middle School, along with his mother, requested a meeting with Principal Robert Beeman and Vice Principal Kerry Wilson. During the meeting, Jordan's mother explained that a few nights before, Jordan had become violent with her and was sick to his stomach. Jordan claimed that the incident occurred after he had taken some pills a classmate had given him. Jordan went on to inform Beeman and Wilson that certain students were bringing drugs and weapons to school. He then gave the administrators detailed accounts regarding the actions of several students, including Redding. Specifically, Jordan informed Beeman and Wilson that Redding had served alcohol to her classmates at a party she hosted at her home prior to the dance in August.²

On the morning of October 8, 2003, Jordan again asked to meet with Vice Principal Wilson. During the meeting, Jordan handed Wilson a white pill and said that Marissa had given it to him and that a group of students were planning to take pills at lunch. Upon learning this information, Wilson took the pill to Peggy Schwallier, the school nurse, and asked her to identify it. Schwallier identified it as "Ibuprofen 400 mg," a pill available only by prescription.

Based on this information, Wilson went to Marissa's classroom and asked Marissa to collect her belongings and accompany him to his office. As Marissa got up to comply, Wilson noticed a black planner lying on the desk next to hers. Wilson asked Marissa whether the planner belonged to her and Marissa said no. Wilson nevertheless picked up the planner and handed it to a teacher, who promised that he would attempt to find the owner. Soon thereafter, the teacher discovered that the planner contained knives, lighters, a cigarette, and a permanent marker. He promptly communicated this information to Wilson.

Wilson escorted Marissa back to his office and invited Helen Romero, an administrative assistant, to come in to observe. In Romero's presence, Wilson asked Marissa to turn out her pockets and open her wallet. Marissa did so, producing one blue pill, several white pills, and a razor blade. The blue pill was later identified as "Naprosyn 200 mg," an over-the-counter drug used to treat pain and inflammation. Wilson asked Marissa where the blue pill had come from, and Marissa replied: "I guess it slipped in when she gave me the IBU 400s." When Wilson asked "who is she?," Marissa responded, "Savana Redding." Wilson then questioned Marissa about the black planner. Marissa denied ownership of the planner and claimed she had no knowledge of its contents.

At this point, Wilson asked Romero to take Marissa into the nurse's office and conduct a search of Marissa's person and clothing for pills. Romero complied. She took Marissa into the nurse's office and closed the door, which locked automatically. She then invited school nurse Schwallier to observe. In Schwallier's presence, Romero asked Marissa to: (1) remove her shoes and socks, (2) lift up her shirt and pull out her bra band, and (3) take off her pants and pull out the elastic of her underwear. Marissa complied with each request. The search of Marissa's person and clothing did not yield any more pills, and as soon as the search was over, Romero returned Marissa's clothes and permitted her to get dressed.

While Romero and Schwallier searched Marissa, Wilson retrieved Redding from her classroom and asked her to accompany him to his office. When they arrived, Wilson first admonished Redding about the importance of telling the truth. After Redding assured Wilson that she would be truthful, Wilson showed Redding the black planner he had found near Marissa's desk. Redding acknowledged that the planner belonged to her but claimed that she had lent it to Marissa several days earlier to help Marissa hide some things from her parents. Redding denied having any knowledge of the planner's contents.

Wilson then showed Redding the pills he had seized from Marissa and asked her what she could tell him about them. After Redding denied having knowledge of the pills, Wilson told Redding that he had received a report that she had been passing the pills out to her classmates and asked Redding if she would object to being searched. Redding denied bringing pills to school, denied distributing pills to her classmates, and told Wilson that she did not mind being searched. Wilson then invited Romero into his office, and together, they conducted a search of Redding's backpack. After the search proved fruitless, Wilson asked Romero to take Redding into the nurse's office and conduct a search of her person. Romero complied.

Romero took Redding into the nurse's office and again invited Schwallier to observe. At the time of the search, Redding was wearing "stretch pants without pockets and a T-shirt without pockets." In Schwallier's presence, Romero asked Redding to: (1) remove her jacket, shoes, and socks, (2) remove her pants and shirt, (3) pull her bra out and to the side and shake it, exposing her breasts, and (4) pull her underwear out at the crotch and shake it, exposing her pelvic area. The search did not produce any pills. Immediately after it had concluded, Defendants returned Redding's clothes and allowed her to get dressed. At no point during the search did either Schwallier or Romero touch Redding. Prior to the search, no attempt was made to contact Redding's mother.

Redding subsequently brought this 42 U.S.C. § 1983 action against Wilson, Romero, Schwallier, and the Safford Unified School District. She alleges that Defendants' search of her person violated her Fourth Amendment rights. Defendants moved for summary judgment, arguing that they did not violate Redding's constitutional rights, and that even if they did, they were entitled to qualified immunity because the law was not "clearly established" at the time the search took place. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The district court granted Defendants' motion for summary judgment, holding that Defendants did not violate Redding's Fourth Amendment rights because their search of Redding's person was both justified at its inception and permissible in its scope. See New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Redding timely appealed from the district court's order.

II. Discussion

We review de novo the district court's grant of summary judgment. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In doing so, "we view the evidence in the light most favorable to . . . the non-moving party, and accept the version of all disputed facts most favorable to[that party]." Drummond v. City of Anaheim, 343 F.3d 1052, 1054 n. 1 (9th Cir. 2003).

The fundamental principle that "students do not `shed their constitutional rights . . . at the schoolhouse gate'" is beyond reasonable dispute. Morse v Frederick, ___ U.S. ___, 127 S.Ct. 2618, 2622, 168 L.Ed.2d 290 (2007) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S....