901 F.2d 642 (8th Cir. 1990), 88-2537, Jane Doe A By and Through Jane Doe B v. Special School Dist. of St. Louis County

Docket Nº:88-2537.
Citation:901 F.2d 642
Party Name:JANE DOE
Case Date:April 17, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 642

901 F.2d 642 (8th Cir. 1990)

JANE DOE "A", a minor under age of fourteen, By and Through

her Mother and Next Friend, JANE DOE "B"; John Doe "C", a

minor under the age of fourteen, by and through his Mother

and Next Friend, Jane Doe "C"; John Doe "D", a minor under

the age of fourteen, by and through his Mother and Next

Friend, Jane Doe "D"; John Doe "E", a minor under the age

of fourteen, by and through his Mother and Next Friend, Jane

Doe "E"; John Doe "F", a minor under the age of fourteen,

by and through his Mother and Next Friend, Jane Doe "F";

John Doe "H", a minor under the age of fourteen, by and

through his Mother and Next Friend, Jane Doe "H"; John Doe

"I", a minor under the age of fourteen, by and through his

Mother and Next Friend, Jane Doe "I"; John Doe "J", a minor

under the age of fourteen, by and through his Mother and

Next Friend, Jane Doe "J"; John Doe "K", a minor under the

age of fourteen, by and through his Mother and Next Friend,

Jane Doe "K"; John Doe "L", a minor under the age of

fourteen, by and through his Mother and Next Friend, Jane

Doe "L"; John Doe "M", a minor under the age of fourteen,

by and through his Mother and Next Friend, Jane Doe "M";

Jane Doe "B", individually, as Mother of Jane Doe "A"; Jane

Doe "C", and Father "C", individually, as parents of John

Doe "C"; Jane Doe "D", and Father "D", individually, as

parents of John Doe "D"; Jane Doe "E", and Father "E",

individually, as parents of John Doe "E"; Jane Doe "F", and

Father "F", individually, as parents of John Doe "F"; Jane

Doe "G", individually, as Mother of John Doe "G"; Jane Doe

"H", and Father "H", individually, as parents of John Doe

"H"; Jane Doe "I", individually, as Mother of John Doe "I";

Jane Doe "J", and Father "J", individually, as parents of

John Doe "J"; Jane Doe "K", and Father "K", individually,

as parents of John Doe "K"; Jane Doe "L", and Father "L",

individually, as parents of John Doe "L"; and Jane Doe "M",

individually, as Mother of John Doe "M", Appellants,

v.

The SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY; Samuel A.

Scarnato, individually, and as Superintendent of The Special

School District of St. Louis County; Shirley Marchlewski,

individually, and as Head of Transportation, North Garage,

The Special School District of St. Louis County; Susan

Stotler, individually, and as Assistant Superintendent of

The Special School District of St. Louis County; Juanita

Campbell, individually, and as Head of Transportation of The

Special School District of St. Louis County; and Joan Hill,

individually, and as Assistant Head of Transportation of The

Special School District of St. Louis, County, Appellees.

No. 88-2537.

United States Court of Appeals, Eighth Circuit

April 17, 1990

Submitted June 14, 1989.

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Ross H. Briggs, St. Louis, Mo., for appellants.

John H. Quinn, St. Louis, Mo., for appellees.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BROWN, [*] Senior Circuit Judge.

WOLLMAN, Circuit Judge.

Plaintiffs, eleven handicapped children, appeal the district court's 1 grant of summary judgment in favor of the Special School District of St. Louis County (District), and the five individual defendants: Dr. Samuel Scarnato, Susan Stotler, Shirley Marchlewski, Juanita Campbell, and Joan Hill. We affirm.

I. BACKGROUND

The District provides educational programs for handicapped children. To carry out these programs, the district utilizes some 220 buses to transport the children to the various schools throughout the District. Some of the handicapped children so transported are placed on the buses in their wheelchairs. Others, because of their inability to control their body movements, are placed in physical restraints for their self-protection during the course of the bus trip. Aides ride on certain of the buses to administer to the needs of those children who might be subject to seizures while on the bus.

David Cerny was a bus driver for the District during the 1983-1984 and 1984-1985 school years. On February 8, 1985, Cerny was arrested for sexual abuse. He later pleaded guilty to charges of child abuse involving five children.

Plaintiffs brought this action pursuant to 42 U.S.C. Sec. 1983, alleging that defendants had deprived them of their right to substantive due process in that Cerny's acts of

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physical and sexual abuse had deprived them of their liberty interest in personal privacy and bodily security.

The district court granted summary judgment in favor of all defendants, concluding that a rational trier of fact could not find that the individual defendants had notice of, displayed deliberate indifference to, or tacitly authorized the alleged unconstitutional misconduct, or that the District had a policy or custom of ignoring complaints of physical or sexual abuse. 2

The district court's memorandum opinion fairly and accurately sets forth the evidence supporting plaintiffs' allegations, Jane Doe "A", 682 F.Supp. 451, 454-55 (E.D.Mo.1988), and we will only summarize that evidence here.

Defendant Dr. Scarnato, the District's superintendent, received a single complaint from a parent that on one occasion Cerny had cursed at her and called her names in front of the children on the bus. Dr. Scarnato may also have received information from a District employee that Cerny had kissed a child on the bus.

Defendant Campbell, director of transportation, was told by defendant Marchlewski that Cerny had kissed a boy and was also told by Ms. Marchlewski or defendant Hill that Cerny used foul language on the bus.

Defendant Marchlewski, supervisor of the north bus garage, and defendant Hill, supervisor of bus aides at the north garage, received complaints that Cerny used profanity on the bus, had kissed a boy on the bus, and had pushed one of the plaintiffs down the bus steps and pulled his hair. Ms. Marchlewski also received complaints that Cerny had failed to follow a child's behavior modification program and that he had failed to hand out a bus pass; she also received a complaint that Cerny had kissed and kicked a child and had given him a "snuggle." 3 Ms. Hill received a complaint that a child had not been picked up at his bus stop and that Cerny had physically restrained one of the plaintiffs in order to break up a fight.

Defendant Stotler, area coordinator for the District, received many of the same complaints received by the other individual defendants. In addition, in October of 1984 she allegedly received a complaint from a parent that Cerny had put his hand down a boy's pants and pulled down a boy's pants and spanked him. Shortly before Cerny's arrest in February of 1985, one of the plaintiffs told Ms. Stotler that Cerny had been touching boys' crotches.

The district court concluded that the isolated incidents reported to Dr. Scarnato and Ms. Campbell could not lead to a finding by a rational trier of fact that these two defendants had notice of a pattern of unconstitutional acts and were thereafter deliberately indifferent to or tacitly authorized the alleged physical and sexual abuse of plaintiffs.

With respect to the complaints received by Ms. Marchlewski and Ms. Hill, the district court concluded that although some of the reported incidents might have risen to the level of common law torts, they did not constitute constitutional violations. Accordingly, the district court concluded that the complaints received by Ms. Marchlewski and Ms. Hill did not constitute notice of a pattern of unconstitutional actions and that any failure on the part of Ms. Marchlewski and Ms. Hill to act upon those complaints did not amount to deliberate indifference to or tacit authorization of the alleged physical and sexual abuse of the plaintiffs.

The district court held that the complaints received by Ms. Stotler in October of 1984 and shortly before Cerny's arrest in February of 1985 were insufficient to establish notice of a pattern of unconstitutional conduct necessary to support a finding of liability under section 1983. The district court held that although Ms. Stotler

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may have been negligent in her lack of response to the October 1984 complaint, that negligence would not result in liability under the fourteenth amendment. The district court observed that the report received by Ms. Stotler in 1985 came shortly before Cerny's arrest and thus could not be viewed as supporting a finding that Ms. Stotler was...

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