Armijo By and Through Chavez v. Wagon Mound Public Schools

• Decision Date: 28 October 1998
• Docket Number: 97-2167,Nos. 97-2150,s. 97-2150
• Citation: 159 F.3d 1253
• Parties: 130 Ed. Law Rep. 496, 98 CJ C.A.R. 5645 Philadelfio C. ARMIJO, a deceased minor, by and through his mother/father and next friends, Juanita D. CHAVEZ and Atanacio Armijo, Plaintiffs-Appellees-Cross-appellants, v. WAGON MOUND PUBLIC SCHOOLS; Wagon Mound Public School Board, Bob Bachen, Chairman, J.D. Schmidt, Vice-Chairman, Don Schultz, Secretary, Eldie Cruz and Herman Fernandez, Members; Tony Garcia, Superintendent; Mary Schutz, Principal; Tom Herrera, Counselor; and Pam C. Clouthier, Educational Aide; all of the above individually and in his/her official capacity, Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1253

159 F.3d 1253

130 Ed. Law Rep. 496, 98 CJ C.A.R. 5645

Philadelfio C. ARMIJO, a deceased minor, by and through his mother/father and next friends, Juanita D. CHAVEZ and Atanacio Armijo Plaintiffs-Appellees-Cross-appellants, v. WAGON MOUND PUBLIC SCHOOLS; Wagon Mound Public School Board, Bob Bachen, Chairman, J.D. Schmidt, Vice-Chairman Don Schultz, Secretary, Eldie Cruz and Herman Fernandez Members; Tony Garcia, Superintendent; Mary Schutz Principal; Tom Herrera, Counselor; and Pam C. Clouthier, Educational Aide; all of the above individually and in his/her official capacity, Defendants-Appellants-Cross-Appellees.

Nos. 97-2150, 97-2167.

United States Court of Appeals, Tenth Circuit.

Oct. 28, 1998.

Kevin M. Brown, Brown & German, Albuquerque, New Mexico, for appellants/cross-appellees.

Adam G. Kurtz (Joe M. Romero, Jr. with him on the briefs), Romero & Associates, Albuquerque, New Mexico, for appellees/cross-appellants.

Before EBEL, HOLLOWAY and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

After being suspended and driven home without parental notification, a special education student at a public school committed suicide. His parents brought a cause of action against the school district and various school officials alleging violation of their deceased son's civil rights. The district court denied the defendants' motion for summary judgment on the issue of qualified immunity. Defendants now appeal. Plaintiffs cross-appeal the district court's grant of summary judgment against them on some of their claims. We affirm in part, reverse in part, and remand.

BACKGROUND

In 1994, Philadelfio C. Armijo ("Armijo") was a sixteen-year-old special education student at Wagon Mound Public Schools ("WMPS"), in Wagon Mound, New Mexico. ¹ Armijo is represented in this action by Juanita D. Chavez and Atanacio Armijo (the "Plaintiffs"), his mother and father and next friends. Armijo was classified as learning disabled, and had other psychological and emotional problems, including impulsivity and depression. Armijo had been a special education student at WMPS for seven years. WMPS charted Armijo's progress as a special education student through Individual Education Plans ("IEP") that school officials developed for him.

The October 6, 1994, IEP notes for Armijo stated that "Phil will see [a] social worker for assistance with dealing with school and self-esteem." Earlier in the year, Armijo had told school aide Pam Clouthier ("Clouthier"), "maybe I'd be better off dead." In a discussion with Clouthier in 1994, Armijo stated "I'm just going to shoot myself." Both Clouthier and school counselor Tom Herrera ("Herrera") knew that Armijo had access to firearms.

On December 1, 1994, Principal Mary Schutz ("Schutz") verbally reprimanded Armijo for harassing an elementary student. While in the presence of Schutz and Herrera, Armijo threatened physical harm to the teacher that reported the incident, to the Schutz did not follow stated school disciplinary policy by sending Armijo home. The WMPS policy allows for "[t]emporary suspensions of students who are eligible for special education services ... in accordance with the normal procedures ... provided that the student is returned to the same educational placement after the temporary suspension." However, the WMPS Parent/Student Handbook provides, "If a student is placed on out-of-school suspension, but his/her parents will not be home, that student will be placed instead on in-school suspension without credit for work done." ² Schutz did not inform Armijo's parents about his emergency removal from the school. Schutz also did not instruct Herrera to notify Armijo's parents. Nor did Schutz tell Herrera to check if Armijo's parents were home or to bring him back to school if no one was home. Although Herrera knew that he should speak with Armijo's parents about their son's suspension, Herrera did not attempt to contact them.

teacher's son, and to the teacher's car. Schutz immediately suspended Armijo on an emergency basis. Schutz considered Armijo to be at risk for committing violence. Schutz instructed Herrera to drive Armijo home, which he did. Schutz also contacted the police to inform them of the suspension and instructed the police to detain Armijo if they saw him returning to school. On the way to Armijo's house, Herrera observed Armijo to be "very angry."

After arriving at Armijo's house, Armijo got out of Herrera's car and ran around to the back of the house as Herrera drove away. Armijo's parents returned home later that day and found their son in their bedroom dead of a self-inflicted gunshot wound to the chest from a rifle. In her hand-written statement to the Wagon Mound Police made immediately after learning of Armijo's death, Clouthier noted that within the last months before his death "Phil [Armijo] was constantly depressed and nervous and not really knowing who or what he was." Clouthier added that earlier that day, while discussing Armijo's misbehavior and his inability to understand why he was in trouble, "Phil then told me that maybe he should just leave the school and go to Colorado. I replied, 'mi hijo relax your [sic] upset but everything will be okay. ['] He then said I don't know Pam, maybe I'd be better off dead."

Plaintiffs filed a complaint against WMPS, the WMPS School Board, WMPS Superintendent Tony Garcia, Schutz, Herrera, and Clouthier ("Defendants") under the Individual with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and under 42 U.S.C. § 1983. ³ Plaintiffs claimed that the WMPS Defendants violated IDEA and that the violation caused Armijo's death. Plaintiffs also alleged that WMPS, the WMPS School Board, and WMPS Superintendent Garcia ("WMPS Defendants") improperly failed to train school officials to handle situations involving potentially violent and suicidal students such as Armijo, in violation of 42 U.S.C. § 1983. Finally, Plaintiffs brought a cause of action under 42 U.S.C. § 1983 against Schutz, Herrera, and Clouthier (the "Individual Defendants"), alleging that they violated Armijo's substantive due process rights.

In an April 15, 1997, Memorandum Opinion and Order ("Order"), the district court granted the WMPS Defendants' motion for summary judgment on the IDEA claim and the § 1983 failure to train claim. The district court denied the Individual Defendants' motion for summary judgment based on qualified immunity from the § 1983 substantive due process claim. The district court found that Plaintiffs presented a triable issue regarding In Case No. 97-2150, Defendants filed an interlocutory Notice of Appeal of the district court's denial of qualified immunity. Plaintiffs contest the appeal for lack of jurisdiction. In the alternative, in Case No. 97-2167, Plaintiffs cross-appeal the district court's grant of summary judgment on the failure to train and IDEA claims.

Defendants' knowledge of the danger of suicide and the reasonableness of sending Armijo home without parental notification in light of that risk. Holding that "danger creation" jurisprudence was clearly established well before Armijo committed suicide, the district court found that Plaintiffs' allegations stated a cause of action under the danger creation theory of liability. The district court also found that "the precise measure of state restraint that engenders an individual's right to claim a corresponding affirmative duty" by the state to protect that individual from harm is not defined. However, the district court went on to state that Plaintiffs presented sufficient facts to create a genuine dispute as to whether the Defendants had a "special relationship" with Armijo which gave rise to a corresponding duty to protect him from injury.

DISCUSSION

I. Jurisdiction

We determine whether a defendant may bring an interlocutory appeal of the denial of summary judgment on the issue of qualified immunity under the standard set forth in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). We recently stated that, under Johnson, "[o]rders denying qualified immunity before trial are appealable to the extent they resolve abstract issues of law." Clanton v. Cooper, 129 F.3d 1147, 1152 (10th Cir.1997). Thus:

a district court's order denying a defendant's motion for summary judgment [is] an immediately appealable "collateral order" (i.e., a "final decision") ... where (1) the defendant [is] a public official asserting a defense of "qualified immunity" and (2) the issue appealed concern[s] not which facts the parties might be able to prove, but, rather, whether or not certain given facts show[ ]a violation of "clearly established" law.

Johnson, 515 U.S. at 311, 115 S.Ct. 2151 (citing Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). However, denial of summary judgment is not reviewable as a collateral order "[t]o the extent that the district court's denial of the defendant's motion for summary judgment is predicated on 'evidence sufficiency,' i.e. which facts a party may, or may not, be able to prove at trial." Clanton, 129 F.3d at 1152 (quoting Johnson, 515 U.S. at 313, 115 S.Ct. 2151). "Rather, 'immunity appeals ... [are] limited to cases presenting neat abstract issues of law.' " Clanton, 129 F.3d at 1153 (quoting Johnson, 515 U.S. at 317, 115 S.Ct. 2151).

In Foote v. Spiegel, 118 F.3d 1416 (10th Cir.1997), we stated:

A determination that the law allegedly violated by the defendant was clearly established at the time of the challenged actions is an abstract issue of law that is immediately appealable. A determination that under either party's version of the facts the defendant violated clearly established law is also immediately appealable. However, government officials cannot appeal pretrial denial of qualified immunity to the extent the district court's order decides nothing more than whether the evidence could support...