Jane Doe A v. SPECIAL SCH. DIST. OF ST. LOUIS CTY.

• Decision Date: 18 May 1988
• Docket Number: No. 85-2801C(1),87-1681C(1) to 87-1684C(1) and 87-1686C(1) to 87-1691C(1).,85-2801C(1)
• Citation: 682 F. Supp. 451
• Parties: JANE DOE "A", et al., Plaintiffs, v. The SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

682 F. Supp. 451

JANE DOE "A", et al., Plaintiffs, v. The SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, et al., Defendants.

Nos. 85-2801C(1), 87-1681C(1) to 87-1684C(1) and 87-1686C(1) to 87-1691C(1).

United States District Court, E.D. Missouri, E.D.

March 25, 1988.

On Motion for Reconsideration May 18, 1988.

William Edward Taylor, Ross Harry Briggs, St. Louis, Mo., for plaintiffs.

Timothy K. Kellett, George M. Von Stamwitz, John H. Quinn, III, St. Louis, Mo., for Special School Dist.

Russell F. Watters, Brown, James & Rabbitt, Thomas J. Casey, St. Louis, Mo., for defendant Cerny.

MEMORANDUM

NANGLE, Chief Judge.

Plaintiffs, eleven handicapped children enrolled in the Special School District of St. Louis County (S.S.D.), allege that defendants David Cerny, the S.S.D. and certain S.S.D. officials¹ deprived them of their right to substantive due process in violation of 42 U.S.C. § 1983.² Specifically, plaintiffs allege that Cerny, a bus driver for the S.S.D., deprived them of their liberty interest in personal privacy and bodily security by subjecting them to acts of physical and sexual abuse; that the S.S.D. officials were deliberately indifferent to Cerny's acts; and that the S.S.D. had a custom or policy of ignoring and failing to act upon complaints regarding Cerny's misconduct. The matter is now before the Court on: the S.S.D. defendants' motion for summary judgment with respect to all of the plaintiffs, defendant Cerny's motion for summary judgment, and the S.S.D. defendants' joint motion for partial summary judgment with respect to several of the plaintiffs.

I. Summary Judgment Standard.

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can "show that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In determining whether summary judgment should issue, the facts and inferences from these facts are viewed in the light most favorable to the non-moving party and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-1357, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the non-moving party may not rest on the allegations in the pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). See also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2739 (1983).

In determining whether a genuine issue of material fact exists, the Court views the evidence presented through the "prism" of the burden of proof imposed upon the parties by the underlying substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Recently, the Supreme Court noted that: "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action'." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (quoting Fed.R.Civ.P. 1). Thus, the non-moving party "must do more than show that there is some metaphysical doubt as to the material facts," Matsushita, 106 S.Ct. at 1356, and "where the record as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'." Id.

II. Liability of the Individual S.S.D. Officials.

Plaintiffs have sued the individual S.S.D. defendants in their individual as well as their official capacities. A § 1983 action against officials in their official capacities is "tantamount to an action directly against the public entity." Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir.1987). Because the liability of the individual S.S.D. defendants in their official capacities is coextensive with the liability of the S.S.D., the Court will consider the official capacity liability issue below when it addresses the liability of the S.S.D.

An action against officials in their individual capacities seeks to impose personal liability upon the officials for their own culpable action or inaction. Clay, 815 F.2d at 1170. To impose personal liability upon an official, the plaintiff must show that the official was personally involved, in some way, in the violation of the plaintiff's constitutional rights. An official may be personally involved by directly participating in the constitutional violations, by creating a policy or custom of condoning the violations, by failing to remedy known violations, or by training or supervising subordinates in a grossly negligent or reckless manner. See Id.; Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir.1985); Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). See also City of Springfield, Mass. v. Kibbe, ___ U.S. ___, 107 S.Ct. 1114, 1121, 94 L.Ed.2d 293 (1987) (O'Connor, J., dissenting).

When an official's personal liability is premised upon failure to remedy known constitutional violations or failure to adequately supervise or train subordinates, the plaintiff must show that:

1. The official received "notice of a pattern of unconstitutional acts" committed by subordinates;

2. The official "demonstrated deliberate indifference to or tacit authorization of the offensive acts";

3. The official failed to take sufficient "remedial" action; and

4. The official's failure proximately caused injury to plaintiff.

See Wilson v. City of North Little Rock, 801 F.2d 316, 322 (8th Cir.1986); see also Clay, 815 F.2d at 1170; Patzner, 779 F.2d at 1367. Mere negligence in supervision of subordinates is not sufficient to establish § 1983 liability. See Daniels v. Williams, 474 U.S. 327, 330-33, 106 S.Ct. 662, 664-66, 88 L.Ed.2d 662 (1986); Rubek v. Barnhart, 814 F.2d 1283, 1284 (8th Cir.1987).

Plaintiffs' first amended complaint alleges that the individual SSD officials "failed to adequately investigate the complaints" regarding defendant Cerny's misconduct and "failed to reasonably respond to the pervasive risk of harm" to the plaintiffs. Plaintiffs do not allege that any of the S.S.D. officials directly participated in or observed the alleged violation of the plaintiffs' constitutional rights, instead, plaintiffs base the individual S.S.D. defendants' liability upon their inaction. Therefore, plaintiffs must establish that the individual SSD defendants had "notice of a pattern of unconstitutional acts", were deliberately indifferent to or tacitly authorized the acts, failed to take sufficient remedial action, and that this failure caused injury to plaintiffs.

According to plaintiffs' evidence, defendant Scarnato received a single complaint from a parent that on one occasion defendant Cerny cursed at her and called her names in front of the children on the bus and that her son told her that Cerny was stopping the bus on the side of the road where there was no bus stop. (Plaintiffs' Compliance Report filed August 28, 1987, p. 8). Defendant Scarnato also may have received information from another S.S.D. official that defendant Cerny kissed a child on the bus.³ Defendant Campbell received only two complaints regarding Cerny's conduct: defendant Marchlewski told defendant Campbell that Cerny kissed a boy and defendant Marchlewski or defendant Hill told defendant Campbell that Cerny used foul language on the bus. (Plaintiffs' Compliance Report filed August 28, 1987, pp. 5, 6, 9). The Court concludes that on the basis of the isolated incidents reported to defendants Scarnato and Campbell, a rational trier of fact could not find that these defendants had "notice of a pattern of unconstitutional acts" and were deliberately indifferent to or tacitly authorized the alleged physical and sexual abuse of plaintiffs. Wilson, 801 F.2d at 322.

Defendants Marchlewski and Hill allegedly received complaints that defendant Cerny used profanity on the bus, kissed a boy on the bus, pushed plaintiff John Doe "M" down the bus steps, and pulled his hair.⁴ (Plaintiffs' Compliance Report filed August 28, 1987, pp. 5, 7, 10, 11). Defendant Marchlewski also received complaints regarding Cerny's failure to follow a child's behavior modification program and Cerny's failure to hand out a bus pass, and a complaint that Cerny kissed, kicked and gave John Doe "G" a "snuggle."⁵ (Plaintiffs' Compliance Report filed August 28, 1987, pp. 7, 9). Defendant Hill received a complaint that a child had not been picked up at his bus stop and that Cerny physically restrained John Doe "D" to break up a fight. (Plaintiffs' Compliance Report filed August 28, 1987, pp. 7, 12).

Many of the complaints received by defendants Marchlewski and Hill, e.g. failure to give out a bus pass, not picking up a child at a bus stop, restraining a child to break up a fight, are similar to the kinds of complaints routinely received regarding a bus driver's interaction with children. While some of the reported incidents involved offensive actions which well may rise to common-law torts, these actions do not rise to constitutional violations under the circumstances of this case. Thus, the complaints received by defendants Marchlewski and Hill do not constitute "notice of a pattern of unconstitutional actions." Moreover, any failure on the part of defendants Marchlewski and Hill to act upon these complaints does not amount to deliberate indifference to or tacit authorization of the alleged physical and sexual abuse of the plaintiffs.

Of the individual S.S.D. defendants, defendant Stotler received the most notice of defendant Cerny's alleged misconduct. According to plaintiffs' evidence, defend...