Hearring v. Sliwowski

• Decision Date: 20 November 2015
• Docket Number: 14–6315.,Nos. 14–6039,s. 14–6039
• Parties: Melissa HEARRING, Individually and as natural mother and next friend of B.H., a minor child, Plaintiff–Appellee, v. Karen SLIWOWSKI, Individually, Defendant, Metropolitan Government of Nashville and Davidson County, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

806 F.3d 864

Melissa HEARRING, Individually and as natural mother and next friend of B.H., a minor child, Plaintiff–Appellee,

v.Karen SLIWOWSKI, Individually, Defendant,Metropolitan Government of Nashville and Davidson County, Defendant–Appellant.

Nos. 14–6039

14–6315.

United States Court of Appeals, Sixth Circuit.

Nov. 20, 2015.

ON BRIEF:Allison L. Bussell, James E. Robinson, Keli J. Oliver, Department of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, Tennessee, for Appellant. Phillip L. Davidson, Brentwood, Tennessee, for Appellee.

OPINION

SUTTON, Circuit Judge.

This dispute began in 2009 when a first-grader in the Nashville public schools complained to a teacher that her genitals hurt. The teacher sent the child to a school nurse who visually inspected the girl. Perhaps understandably, that did not make the girl's mother happy, particularly since the nurse did not seek her consent before the examination. Less understandably, the examination led to a half-dozen years of litigation.

The mother filed a money-damages action against the nurse and the school district for conducting a search in violation of her child's Fourth and Fourteenth Amendment rights. She sought $1.75 million. The first stage of this dispute ended when our court granted qualified immunity to the nurse on the ground that existing law did not clearly establish that a medical examination of a child in response to complaints of pain violated the Fourth Amendment's prohibition on unreasonable searches and seizures. 712 F.3d 275 (6th Cir.2013). The second stage of this dispute seemed to end when (1) a jury rejected the mother's claim against the school district on the ground that the examination did not violate the child's Fourth and Fourteenth Amendment rights, and (2) the district court rejected the mother's request for a new trial. The court, however, did not enter judgment for the school district. It instead issued an injunction that required the school system to train its nurses more effectively to prevent incidents of this sort from happening again. This impromptu injunction was not an everyday exercise of judicial power, and it is one we must reverse for three reasons: (1) the mother did not seek such an injunction; (2) the undisturbed (and now unappealed) jury verdict that no constitutional violation occurred eliminated the factual predicate for such an injunction; and (3) the mother (and daughter) lacked standing to obtain such an injunction anyway, see City of Los Angeles v. Lyons,461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). For these reasons and those elaborated below, we reverse and direct the district court to enter judgment in favor of the school district.

I.

In October 2009, B.H., a first-grade student in the Metropolitan Nashville Public Schools, complained of pain in her genitals. A school secretary called her mother, Melissa Hearring, who responded that B.H. often suffered from bladder infections

. No physical examination of B.H. occurred at that point. Two days later, B.H. made a similar complaint. This time, the secretary asked the school nurse, Karen Sliwowski, to see B.H. Sliwowski and the secretary took B.H. to a faculty restroom where Sliwowski asked B.H. to remove some of her clothes. Sliwowski visually checked B.H.'s genitals for redness, including by asking B.H. to “open her labia.” R. 204 at 46. The examination lasted a minute and B.H.'s genitals were exposed for “[s]econds.” Id.at 13.

The aftermath lasted six years. Hearring filed this § 1983money-damages action on B.H.'s behalf. She alleged that Sliwowski's examination violated B.H.'s Fourth (and Fourteenth) Amendment right to be free from unreasonable searches. She also alleged that the Metropolitan Government of Nashville and Davidson County, Sliwowski's then-employer and for our purposes the “school district,” violated B.H.'s Fourth Amendment rights because it did not have a policy in place concerning this type of examination and failed to train Sliwowski adequately.

Sliwowski filed a motion for summary judgment on qualified immunity grounds. The district court denied the motion on the ground that “B.H.'s Fourth Amendment right to be free from such a[ ] highly invasive search was clearly established at the time of Sliwowski's search.” Hearring v. Sliwowski,872 F.Supp.2d 647, 673 (M.D.Tenn.2012). A panel of this court reversed, holding that qualified immunity protected Sliwowski from the Fourth Amendment claim. Hearring v. Sliwowski,712 F.3d 275 (6th Cir.2013). On remand, Hearring added a Fourteenth Amendment claim against the school district, alleging that its failure to train made it liable for a violation of B.H.'s substantive due process rights because the exam was “an invasion of [B.H.'s] privacy.” R. 88 at 5.

The money-damages claims against the school district—for an unconstitutional search and unconstitutional invasion of privacy—proceeded to trial. To prevail, Hearring had to show that (1) Sliwowski violated at least one of these constitutional rights, (2) the school district showed “deliberate indifference” to those rights through its failure to train employees properly in this area, and (3) the failure caused the constitutional violation. See, e.g., Connick v. Thompson,563 U.S. 51, 131 S.Ct. 1350, 1357–58 & n. 3, 179 L.Ed.2d 417 (2011); Monell v. Dep't of Soc. Servs.,436 U.S. 658, 694–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The jury balked at the first step. It found that Sliwowski did not violate either constitutional right. Hearring moved for a new trial, and the district court denied the motion. The court, however, did not leave it at that. It granted an unrequested injunction, one that “require [d] training of the relevant Metro school employees” on constitutional limits “to ensure safeguards for school children's privacy.” R. 186 at 14–15. Two days after this decision, Hearring moved to amend her complaint to add a request for an injunction consistent with the one the district court ordered. Another two days later, the court granted the motion through a handwritten note on the first page of the motion, saying: “This motion is granted, but Plaintiff's complaint sought whatever relief the Court deemed just, fit and proper.” R. 190 at 1. The school district appealed the injunction. Hearring did not appeal the district court's denial of a motion for a new trial.

II.

The district court erred in imposing the injunction.

First,Hearring never sought an injunction and indeed in the pre-trial order expressly sought only money damages. Her original and amended complaints, all three of them, say nothing about an injunction. They mention only her requests for money damages. The joint pretrial order filed by the parties and issued by the district court made this request explicit. That order “supplant[ed] the pleadings” and gave a “Succinct Statement of the Relief Sought”: “The Plaintiff is seeking One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) in compensatory damages, attorney fees, and costs.” R. 168 at 1, 7. The parties, no surprise, never offered any evidence or argument about why such an injunction should be granted or for that matter denied. Ours is an adversarial system. Courts must give both sides of the case an opportunity to join a debate about any appropriate relief, requested or not, in a given matter. Nothing of the sort happened here—even after four years of litigation.

That the plaintiff's complaints sought “such other and further relief as the Court deems fit and proper” does not justify the order. R. 1 at 4; R. 10 at 6; R. 88 at 7. Hearring agreed that the pre-trial order “supplant [ed]” her earlier pleadings that included this language. R. 168 at 1. Even had that not been the case, one would still expect to see a request for such relief before a court entered it. That the district court later granted Hearring's motion to amend her complaint—after the jury rejected the pleaded claims and after the court entered the spur-of-the-moment injunction—does not make up for the error. The court had no authority to grant an amendment to a by-then superseded complaint. The point at any rate is to give the parties, even the ostensibly benefitted party, an opportunity to protest or promote the injunction beforethe court enters it. That did not happen. If we require courts to give “notice to the adverse party” before issuing a preliminaryinjunction, it follows that we should do (at least) the same before issuing a permanentinjunction. Fed.R.Civ.P. 65(a)(1); see also Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70,415 U.S. 423, 432 n. 7, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). An unprompted and improvised permanent injunction cannot be justified by a prompted and (essentially) scripted request for an injunction after the fact.

Second,the jury rejected the necessary factual predicate for such an injunction. It found that no constitutional violation occurred. Judges have authority to enter injunctions against a party—to change the party's behavior through the power of the federal courts—when they have done something wrong, and even then that will not always suffice by itself. See Winter v. Nat. Res. Def. Council, Inc.,555 U.S. 7, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). But when “there was no constitutional violation[,] ... there is no ongoing unconstitutional conduct to enjoin.” Taylor v. Mich. Dep't of Nat. Res.,502 F.3d 452, 458 (6th Cir.2007). Any authority the district court had to require the school district to create this training program stemmed only from a finding that the school district had violated the constitutional rights of its students. Consider the language of § 1983, the sole source of authority for this cause of action. It requires a constitutional (or statutory) “deprivation” before the court may hear “an...