Black by Black v. Indiana Area School Dist.

• Decision Date: 29 January 1993
• Docket Number: No. 91-3481,91-3481
• Citation: 985 F.2d 707
• Parties: 80 Ed. Law Rep. 812 Heather and Amanda BLACK, minors by their parents and natural guardians, Leonard and Wilma BLACK and Leonard and Wilma Black, in their own right; Erin Davis, a minor, by her parent and natural guardian, Gregory Davis and Gregory Davis in his own right; Stefanie and Darcie Hulings, minors, by their parents and natural guardians, Dennis and Luene Hulings and Dennis and Luene Hulings, in their own right; and Elizabeth Jones, a minor, by her parent and natural guardian, Nancy R. Jones and Nancy R. Jones, in her own right, Appellants, v. INDIANA AREA SCHOOL DISTRICT; David Laird, Superintendent of the Indiana Area School District; Clark Lemuel Myers, Jr.; Vernon Claypoole; Vernon R. Claypoole, Inc.
• Court: U.S. Court of Appeals — Third Circuit

Page 707

985 F.2d 707

80 Ed. Law Rep. 812

Heather and Amanda BLACK, minors by their parents and

natural guardians, Leonard and Wilma BLACK and Leonard and

Wilma Black, in their own right; Erin Davis, a minor, by

her parent and natural guardian, Gregory Davis and Gregory

Davis in his own right; Stefanie and Darcie Hulings,

minors, by their parents and natural guardians, Dennis and

Luene Hulings and Dennis and Luene Hulings, in their own

right; and Elizabeth Jones, a minor, by her parent and

natural guardian, Nancy R. Jones and Nancy R. Jones, in her

own right, Appellants, v. INDIANA AREA SCHOOL DISTRICT; David Laird, Superintendent

of the Indiana Area School District; Clark Lemuel

Myers, Jr.; Vernon Claypoole; Vernon

R. Claypoole, Inc.

No. 91-3481.

United States Court of Appeals, Third Circuit.

Argued Jan. 22, 1992.

Decided Jan. 29, 1993.

Maureen Dunn Harvey (argued), Wallace, Chapas & Jamiolkowski, Pittsburgh, PA, for appellants.

Louis Anstandig (argued), Eileen Anstandig, Anstandig, Levicoff & McDyer, Pittsburgh, PA, for appellees Indiana Area School Dist. and David Laird, Superintendent.

George P. Faines (argued), Dan M. Brookhart, Thorp, Reed & Armstrong, Pittsburgh, PA, for appellee Clark Lemuel Myers, Jr.

Richard C. Levine (argued), Rosenberg, Kirshner P.A., Pittsburgh, PA, for appellees Vernon Claypoole and Vernon R. Claypoole, Inc.

Before: STAPLETON, SCIRICA, and ALITO, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Plaintiff schoolchildren allege that they were sexually molested by their school bus driver while being driven in the bus to and from school and, together with their parents and guardians, brought a civil rights action under 42 U.S.C. § 1983 against the bus driver, Clark Myers, the school superintendent, David Laird, the school district, the bus company, Vernon R. Claypoole, Inc., and its president, Vernon Claypoole. The district court granted a motion for summary judgment as to all defendants, and plaintiffs appeal. We will affirm.

I.

Plaintiffs allege that at various times between September 1984 and December 1988, Myers sexually molested the girls while on the school bus. At the time of the alleged molestations the schoolchildren were six, seven, and eight years old.

There were only two complaints made about Myers' alleged activities. One was in February of 1985 and the other was in December of 1988. In February of 1985, Dennis Hulings contacted the school district with concerns that Myers might have sexually molested Hulings' daughter, Stefanie. Superintendent Laird immediately contacted the Hulings to verify the complaint. The Hulings were unsure that any molestation had occurred and were reluctant to press criminal charges. Laird called a meeting which Mr. and Mrs. Hulings, Myers, and Laird attended. At the conclusion of the meeting Laird and the Hulings were convinced that, while Myers may have shown some special affection for Stefanie, no sexual abuse had taken place. Laird instructed Myers to stop showing special attention to any particular child, and the Hulings apologized to Myers for having brought the complaint. Laird did not report the Hulings' complaint to Children and Youth Services because he, like the Hulings, did not believe that Stefanie had been abused. There were no further complaints against Myers until December of 1988.

In December of 1988, another parent informed Laird that Myers had molested her daughter and other children, and that she intended to press criminal charges. Laird insisted that Myers be suspended from driving a bus for the school district, and Myers has not driven for the school district since that time. Children and Youth Services was notified of the complaint and a criminal prosecution ensued.

II.

Plaintiffs allege that the children's constitutionally protected right to bodily integrity ¹ was violated by Myers' alleged abuse. They assert that Myers was acting under color of law when he committed the assault, and that he is thus personally liable under § 1983. With respect to Laird, plaintiffs claim that Laird established and maintained, with deliberate indifference to the consequences, a policy, practice or custom that directly caused the harm, and so is independently liable for the wrong. Additionally, plaintiffs claim that Laird had an affirmative duty to protect the children under his care, arising from a "special relationship" between the school district and the children. Likewise, plaintiffs claim that the school district is liable both on a "policy leading to injury" theory and a "special relationship" theory. Finally, plaintiffs claim that Vernon Claypoole and the Claypoole Corporation are independently liable for plaintiffs' injuries because, while acting under color of state law, they failed to sufficiently monitor Myers.

This Court's standard for reviewing a summary judgment is plenary. Regarding the facts in the light most favorable to the non-moving plaintiffs, we must determine whether the moving defendants are entitled to judgment as a matter of law. See Sames v. Gable, 732 F.2d 49 (3d Cir.1984); Betz Laboratories, Inc. v. Hines, 647 F.2d 402 (3d Cir.1981).

III.

With respect to Myers, Claypoole and Vernon R. Claypoole, Inc., the threshold question is whether they were acting under color of state law. If they were not, they can have no liability under 42 U.S.C. § 1983. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769-70, 73 L.Ed.2d 418 (1982).

Vernon R. Claypoole, Inc. is a private entity that was under contract with the school district to provide transportation for students to and from school. Myers and Claypoole were, respectively, an employee and an officer of this state contractor. Thus, none of these three defendants was an officer or employee of the state. We must nevertheless determine whether their actions are "fairly attributable to the state." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753-54, 73 L.Ed.2d 482 (1982). Based on Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), we conclude that they cannot.

In Rendell-Baker, five employees of a private school brought a § 1983 suit against a Massachusetts private school, the New Perspectives School, and its director, alleging that they had been discharged for speech protected by the First Amendment. The crucial issue was whether the director and the school were acting under color of state law when the plaintiffs were discharged.

New Perspectives specialized in dealing with students who had had difficulty completing public high school because of behavioral problems or other special needs. Nearly all of the students in the school were referred to it by public school committees or state agencies. Public funds accounted for at least 90% of the school's operating budget. Under Massachusetts law, all students with special needs were entitled to a suitable public education under the supervision of the state and local governments. Public school committees had a statutory obligation to identify all children who had special educational needs and to prepare an individualized education program for each of them. The state statute provided that public school committees could contract with private schools to implement these educational programs. Public school committees and a state agency had entered into contracts with New Perspectives under which New Perspectives accepted the referred individuals as students and the public entities paid tuition in return.

The Supreme Court held in Rendell-Baker that New Perspectives and its superintendent did not act under color of state law when discharging the plaintiffs. The Court held:

The school ... is not fundamentally different from many private corporations whose business depends primarily on contracts to build roads, bridges, dams, ships, or submarines for the government. Acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.

457 U.S. at 830, 102 S.Ct. at 2764.

It is clear from Rendell-Baker that a state contractor and its employees are not state actors simply because they are carrying out a state sponsored program and the contractor is being compensated therefor by the state. Nor does the fact that the activity being performed is a public function render the contractor and its employees state actors. For the nature of the contractor's activity to make a difference, the function performed must have been "traditionally the exclusive prerogative of the State." 457 U.S. at 842, 102 S.Ct. at 2772 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 455, 42 L.Ed.2d 477 (1974)). The nature of the contractor's activity in Rendell-Baker did not make the contractor and its employees state actors because the policy choice of Massachusetts to provide educational services for maladjusted high school students at public expense "in no way [made] these services the exclusive province of the State." Id. 457 U.S. at 842, 102 S.Ct. at 2772.

The Court in Rendell-Baker acknowledged that schools in Massachusetts, and the New Perspectives School in particular, were heavily regulated. This fact made no difference, however, because the discharge decisions complained of "were not compelled or even influenced by any state regulation." Id. at 841, 102 S.Ct. at 2771.

We conclude that the positions of Vernon O. Claypoole, Inc. and its employees in this case are indistinguishable from the positions of New Perspectives and its employees in Rendell-Baker. While Vernon O. Claypoole, Inc. and its employees were carrying out a state program at state expense, they were not performing a function that has been "traditionally the exclusive prerogative of the state" and there was no state regulation that "compelled or even influenced" the conduct which is alleged to have violated plaintiffs' constitutional rights.

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