900 F.2d 804 (5th Cir. 1990), 89-2828, Fee v. Herndon

Docket Nº89-2828.
Citation900 F.2d 804
Party NameRonald Lee FEE and Wife, Nancy Lee Fee, Individually and as Next Friends of Tracy John Fee, a Minor, Plaintiffs-Appellants, v. Joseph Milton HERNDON, et al., Defendants-Appellees.
Case DateMay 09, 1990
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 804

900 F.2d 804 (5th Cir. 1990)

Ronald Lee FEE and Wife, Nancy Lee Fee, Individually and as

Next Friends of Tracy John Fee, a Minor,



Joseph Milton HERNDON, et al., Defendants-Appellees.

No. 89-2828.

United States Court of Appeals, Fifth Circuit

May 9, 1990

Page 805

Gregory B. Enos, Burwell & Enos, Texas City, Tex., for plaintiffs-appellants.

Carla Cotropia, Robert Davee, Galveston, Tex., for Herndon.

Ronnie B. Arnold, Daryl G. Dursum, Coats, Yale, Holm & Lee, Houston, Tex., for Disd, et al.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, GARWOOD, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

A sixth grade special-education student became disruptive during classroom instruction, prompting the use of corporal punishment by the school's principal to restore discipline. The parents, Ronald and Nancy Fee, maintain that the principal beat their emotionally disturbed child so excessively, however, that the student was forced to remain in psychiatric rehabilitation for months. The parents further allege that they incurred large medical costs as a consequence of the hospitalization.

The plaintiffs commenced this action pursuant to 42 U.S.C. Sec. 1983 against the school district and various educators, averring that the fourteenth amendment's substantive

Page 806

due process guarantee operates to ban excessive corporal punishment in public schools. Pendent state-law tort claims were attached to this civil rights suit to raise charges of negligence and excessive force. Indisputably, however, state remedies--both criminal and civil--are available in Texas and proscribe the excessive use of corporal punishment against students, including emotionally handicapped children. That being so, our precedents instruct that the substantive component of the due process clause, though selectively applied in other contexts, is inoperative under the facts herein presented.

We adhere to this circuit's rule that no arbitrary state action exists, by definition, where states affirmatively impose reasonable limitations upon corporal punishment and provide adequate criminal or civil remedies for departures from such laws. Accordingly, we conclude that defendants here, all of whom allegedly acted in contravention of Texas's criminal or civil laws, have not implicated federal substantive due process considerations, irrespective of the argued capriciousness of the corporal punishment imposed. Thus, federal constitutional relief is not among the plaintiffs' available remedies, and consequently we affirm.


Tracy Fee attended special-education classes within the defendant Dickinson Independent School District. The few relevant facts not disputed by the litigants can be reduced succinctly to the following: (1) Tracy attended sixth grade at a public school within the district; (2) he had a documented history of aggressive behavioral problems; (3) he attended special classes for emotionally handicapped children; and (4) he received corporal punishment from the school's principal after his teacher sent him to the principal's office for misbehaving in class. Excluding this narrow area of accord, the facts are dramatically at odds.

School officials downplay the extent of the student's injuries and focus upon his behavioral problems. The Fees, in contrast, portray a brutal beating of their son by the principal, Joseph Herndon, which was witnessed passively by his teacher, Suzanne Lahr. School officials admit that the principal paddled Tracy three times on the buttocks to serve as punishment for his disruptive behavior during a history class, but they insist that the punishment comported with official school policy, which provides for reasonable corporal punishment. 1

The defendants further profess that the use of corporal punishment by school officials was agreed to expressly by the mother through a special-education consent form. 2 Any aggravated mental or physical injury, they maintain, was self-inflicted by Tracy, as he aggressively resisted punishment and thrashed about on the principal's floor. They also reject the assertion that Tracy's teacher, who accompanied her student to the principal's office, witnessed any use of excessive force against Tracy.

The Fees allege that Tracy's injuries first became evident to them shortly after his return from school, where he complained of pain and having been beaten by the principal. They called the sheriff's department, and a police officer took pictures of the welts and scrapes on the child's body. The sheriff's department thereafter investigated the incident, but no criminal action was instituted against any defendant.

Page 807

The parents assert that their son was hospitalized as a consequence of the beating and forced to spend a total of six months in a psychiatric ward; the total cost of this medical care approached $90,000. Further, Tracy has never fully recovered, we are told, as he has displayed even more pronounced antisocial behavior since the "brutal" beating. The parents admit, however, that Tracy's emotional problems predated this paddling incident.

The Fees filed a section 1983 action against Tracy's principal and teacher, the school district, and Dickinson's superintendent and trustees. The natural persons were sued in their official and individual capacities. Suit was originally commenced in state court and subsequently was removed. The complaint raises allegations of negligence, gross negligence, and excessive force with respect to the principal and teacher. Additionally, all defendants are charged with violating the student's substantive due process rights under the fourteenth amendment.

The defendants unsuccessfully moved for summary judgment at an earlier phase of this litigation. However, the district court warned the plaintiffs at that time that section 1983 does not provide for what the state-court petition terms "responded superior" [sic] liability for the negligent acts of educators. Accordingly, the court granted the Fees an opportunity to amend the complaint so that they could present their "best case." The Fees amended their complaint but not to the district court's satisfaction: The court held that the plaintiffs' "conclusory allegations" once again failed to premise liability upon grounds other than respondeat superior.

The defendants renewed their motion for summary judgment, which the district court construed alternatively as a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim. The court disposed of all claims, except the state-law excessive-force charge directed at the principal only. It thereafter declined to exercise pendent jurisdiction over this residual tort dispute and remanded that sole remaining claim.

The Fees appeal, maintaining, first, that the district court should not have dismissed the state-law action against the teacher who passively witnessed the corporal punishment. They also argue that the substantive component of the due process clause proscribes the abusive treatment of students, especially emotionally handicapped students, in public schools and thus affords to them a federal constitutional cause of action here.



A section 1983 complaint must state specific facts, not simply legal and constitutional conclusions. Angel v. City of Fairfield, 793 F.2d 737, 739 (5th Cir.1986); Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985). The standard of review to be applied to a dismissal of federal or state claims pursuant to rule 12(b)(6) is the same as that exercised by the trial court: It must appear to a certainty that the plaintiffs can prove no set of facts in support of their claims that would entitle them to relief. Worsham v. City of Pasadena, 881 F.2d 1336, 1339 (5th Cir.1989); Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir.1989); Angel, 793 F.2d at 739. We may not go outside the pleadings and must accept all well-pleaded facts as true, viewing them most favorably to the plaintiffs. Partridge v. Two Unknown Officers, 791 F.2d 1182, 1185-86 (5th Cir.1986); O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985).


"Paddling of recalcitrant children has long been an accepted method of promoting good behavior and instilling notions of responsibility and decorum into the mischievous heads of school children." Ingraham v. Wright, 525 F.2d 909, 917 (5th Cir.1976) (en banc), aff'd, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). This common law principle, in fact, predates the American Revolution. Id., 430 U.S. at 661, 97 S.Ct. at 1407. However, coincidently with the genesis of corporal punishment, reasonable limits traditionally have been imposed upon

Page 808

student discipline so as not to give teachers a license to commit state-sanctioned child abuse. Specifically, post-punishment civil or criminal remedies have targeted public school teachers who departed from the disciplinary norms defined by statute or the common law. See Comment, Corporal Punishment in the Public Schools: The Effect of the Eighth and Fourteenth Amendments, 29 Baylor L.Rev. 549, 556 n. 61 (1977) (citing nineteenth-century criminal convictions in Texas of educators who abused the use of corporal punishment).

This dispute presents the question of whether the federal Constitution independently shields public school students from excessive discipline, irrespective of state-law safeguards. In Ingraham, the Supreme Court declared that twenty swats to a student, which removed him from school for days with bruises and disabled his arm for a week, did not violate procedural due process guarantees. 430 U.S. at 682, 97 S.Ct. at 1418. That is, while "corporal punishment in public schools implicates a constitutionally protected liberty interest," id. at 672, 97 S.Ct. at 1413, the state may impose sufficient post-punishment safeguards to satisfy procedural due process concerns, id. at 682, 97 S.Ct. at...

To continue reading