Burnham v. West

• Decision Date: 28 December 1987
• Docket Number: Civ. A. No. 87-0464-R.
• Citation: 681 F. Supp. 1160
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Forrest BURNHAM, et al., Plaintiffs, v. Roy A. WEST, et al., Defendants.

681 F. Supp. 1160

Forrest BURNHAM, et al., Plaintiffs, v. Roy A. WEST, et al., Defendants.

Civ. A. No. 87-0464-R.

United States District Court, E.D. Virginia, Richmond Division.

December 28, 1987.

David P. Baugh, Claire G. Cardwell, Gerald T. Zerkin, Michael P. Kozak, Zerkin, Heard & Kozak, and Kay Ely-Pierce, Richmond, Va., for plaintiffs.

Frank B. Miller, III, Elizabeth Parrish, Sands, Anderson, Marks & Miller, Richmond, for defendant Harrison-Jones.

James W. Morris, III, Ann Adams Webster, David P. Corrigan, Browder, Russell, Morris & Butcher, Richmond, Va., for Roy A. West, Joyce P. Hewlett, Andrew Miller, Ozzie W. Brown, and Margaret L. Jones.

MEMORANDUM OPINION AND ORDER

SPENCER, District Judge.

Plaintiffs, students at Albert Hill Middle School ("AHS") suing by their next friends, have moved for summary judgment in their favor on the two remaining claims in this suit, both of which concern allegedly unconstitutional searches carried out by certain teachers at the direction of Dr. Roy A. West, principal at AHS during the time period pertinent to this case.¹ West and the named teachers (the "AHS defendants") have moved for summary judgment in their favor as to liability for one of the searches, and as to damages and declaratory and injunctive relief. Dr. Lois Harrison-Jones, the remaining defendant and West's supervisor, has moved for summary judgment on the ground that the evidence fails to show sufficient personal involvement on her part to support a claim against her.

The facts will be stated in connection with the motion to which they pertain.

I. MOTION OF DR. LOIS HARRISON-JONES

In January 1987, Harrison-Jones was made aware by at least three parents that students at AHS had been searched for "Walkmen" and radios.² Harrison-Jones promptly contacted West, asked him to explain his action in ordering the search, and discussed with him both the search and the question of returning the items that had been confiscated.

All or a substantial portion of the AHS student body was subsequently searched for marijuana. When Harrison-Jones learned of the later search, she met with West to discuss his policies concerning searches. Harrison-Jones subsequently sent West a letter advising him to obtain enough information to be able to confine his searches to a narrower population in the future.

At some point in the period encompassing the above events, Harrison-Jones discussed the searches with attorneys connected with the school system.

Supervisory indifference or tacit authorization of subordinates' misconduct, if demonstrably a causative factor in a constitutional injury,³ is actionable under 42 U.S. C. section 1983. E.g., Slakan v. Porter, 737 F.2d 368 (4th Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). "The plaintiff ... assumes a heavy burden of proof in supervisory liability cases." Id. at 373. One of the necessary elements of proof in such cases is the supervisor's failure to take reasonable remedial steps to prevent the injury. Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981). The additional necessity of showing a causal link between the supervisor's inaction and the injury is what makes plaintiff's burden "heavy"; it is not enough merely to disagree with the supervisor's managerial techniques. See Slakan, 737 F.2d at 372-73; see also Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976) ("affirmative link"); Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.1987) (action or inaction must be shown to have caused the injury).

Valuable guidance on the necessary causal link may be found in Spell v. McDaniel, 824 F.2d 1380 (4th Cir.1987). Spell is a municipal liability rather than a supervisory liability case, but in recognizing foreseeability as the touchstone of causation Spell simply aligns itself with one of the ancient principles of tort law.

A sufficiently close causal link between ... a known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom.... Failure to correct the known practices must be such as to make the specific violation "almost bound to happen, sooner or later," rather than merely "likely to happen in the long run."

824 F.2d at 1391. Applied in the case at bar, this standard has the virtue of focusing analysis on Harrison-Jones's connection with the alleged injury as revealed in the record, thus avoiding speculation about the possible effect of actions that she might have taken. Plaintiffs contend that "the basis of plaintiffs' claim against defendant Harrison-Jones is not that she failed to respond at all, but that she failed to act significantly or effectively to prevent future harm...." (Plaintiffs' Reply Br. 7). In essence, this amounts to saying that because an injury happened, Harrison-Jones must have acted inappropriately, which obviously begs the question of how any such act or omission caused the injury. Plaintiffs have utterly failed to show how Harrison-Jones's actual approach to the situation made further violations reasonably probable.

Plaintiffs have also failed to point to evidence of any indifference or tacit approval on Harrison-Jones's part. In support of her summary judgment motion, Harrison-Jones has shown that she promptly investigated the searches in question, inquired into West's policies concerning student searches, discussed the searches with legal counsel, and recommended to West that he narrow the scope of future searches by conducting more extensive investigations beforehand. The latter recommendation was made by letter, and while the parties have failed to produce this letter, both West and Harrison-Jones have described its contents in their sworn depositions as provided in Fed.R.Civ.P. 56.⁴ "When a motion for summary judgment is made and supported as required in Rule 56, the nonmoving party must produce `specific facts showing that there is a genuine issue for trial,' rather than resting upon the bald assertions of his pleadings." Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985) (quoting Fed.R. Civ.P. 56(e)). Because Harrison-Jones has established the absence of a material factual dispute as to inaction on her part,⁵ and as to causation, she is entitled to summary judgment.

II. MOTION OF PLAINTIFFS

Facts

In December 1986, during a regular class period at AHS, West announced that he had discovered defacement of school property, and directed the teachers to search students' bookbags, pockets, and pocketbooks for magic markers. Under an AHS rule, students were not permitted to have magic markers on school property unless the magic markers were required in a particular class.

Teachers proceeded to look into bookbags and pocketbooks, and required boys to turn their pockets inside out. There is no evidence that any student was physically touched during the search.

On or about January 6, 1987, a teacher told West that she had observed several students alighting from school buses that morning carrying "Walkmen" or radios. Without making any further inquiry, West ordered a search of all students' bookbags and pocketbooks for Walkmen or similar devices.

A search was conducted pursuant to West's instructions. One teacher told his students to stand by their desks and place the items in their bookbags and purses on top of their desks. He then looked into the emptied purses. Another teacher placed her hand into a plaintiff's purse, but did not find the Walkman that was inside.

On or about February 2, 1987, a teacher reported to West that she had smelled marijuana smoke in two hallway areas near the school cafeteria. Classes were in progress at this time, and no students were in the halls. West went immediately to the hallway areas and detected a strong odor of marijuana in both. West's description of the physical layout of the pertinent areas is significant.

Q Could you detect the odor in both places?

A Both places. In between there is a large area which is the cafeteria. You would leave one area and go through the cafeteria and to the other area.

Q There was a door from the outside into the cafeteria directly?

A The door comes from the outside into this little vestibule or hallway, and that's where I smelled the second portion of the marijuana.

(West Dep. 59). West looked for physical evidence but found none. West then made a "random check" by walking down the hall and asking several teachers whether they had excused any students from class during the period he had determined the marijuana use had occurred; although AHS uses a hall pass system, this effort produced no suspects. There is no evidence that passes were checked or that any further pre-search investigation was made.

West ordered a search of all students' pocketbooks and bookbags, and of male students' pockets. During this search, one of the plaintiffs was required to empty her purse onto a teacher's desk, exposing some tampons to the view of the teacher and nearby students. Another teacher sniffed one student's hands to determine if they smelled like marijuana. Students were required to turn their pockets inside out and place the contents on top of their desks.

Discussion

Two matters must be addressed before turning to the merits of plaintiffs' Fourth Amendment claims. First, the AHS defendants made the claim at oral argument that no Fourth Amendment "searches" occurred in this case. However, "an examination of the contents of a person's pocket is clearly a search, whether the pocket is emptied by the officer or by the person under the compulsion of the circumstances." United States v. DiGiacomo, 579 F.2d 1211, 1215 (10th Cir.1978). School children have a reasonable expectation of privacy in personal articles carried with them inside purses or wallets. New Jersey v. T.L.O., 469 U.S. 325, 339, 105 S.Ct. 733, 741, ...