Hearring v. Sliwowski, CASE NO. 3:10-cv-00746

CourtUnited States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
Writing for the CourtWILLIAM J. HAYNES
PartiesMELISSA HEARRING, individually and as natural mother and next friend of B.H., a minor child, Plaintiff, v. KAREN SLIWOWSKI, individually and THE METROPOLITAN GOVERNMENT OF NASHVILLE DAVIDSON COUNTY, TENNESSEE, Defendants.
Docket NumberCASE NO. 3:10-cv-00746
Decision Date26 January 2012

MELISSA HEARRING, individually and as natural mother and next friend of B.H., a minor child, Plaintiff,

CASE NO. 3:10-cv-00746


Dated: January 26, 2012



Plaintiff, Melissa Hearring, as next friend of B.H., a minor, filed this action under 42 U.S.C, § 1983 against the Defendants: Karen Sliwowski, a school nurse who is sued in her individual capacity, and the Metropolitan Government of Nashville Davidson County, Tennessee ("Metro") that employed Sliwowski as a Metro school nurse. Plaintiff asserts a Fourth Amendment claim for the Defendant Sliwowski's visual search of B.H.'s labia without parental consent or medical emergency or other emergent circumstances. Plaintiff alleges that the Defendant Metro lacked any policy for strip searches of students that caused Sliwowski's visual search of B.H.'s labia without justification.

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Before the Court is the Magistrate Judge's Report and Recommendation (Docket Entry No. 69), recommending that the Defendants' motion for summary judgment (Docket Entry No. 26) be granted and that Plaintiff's claims be dismissed. In sum, the Magistrate Judge concluded that B.H.'s Fourth Amendment right, as a minor to be free from a visual search of her labia by a school nurse who had concerns about B.H.'s medical condition, was not clearly established at the time of Sliwowski's visual search. (Docket Entry No. 69 at 21). Thus, the Magistrate Judge concluded that the qualified immunity doctrine bars any damages claims against Sliwowski. Id. The Magistrate Judge also concluded that Plaintiff's proof was insufficient to support a judgment on Plaintiff's Section 1983 claim against Metro. Id. at 26-28. Plaintiff has filed timely objections, and the Defendants filed their response.

Plaintiff asserts multiple objections to the Report and Recommendation that are, in sum: (1) that the Magistrate Judge failed to apply the "common sense" standard for qualified immunity test under Walker v. Davis, 649 F3d 502 (6th Cir. 2011); (2) that there were not any "legitimate health concerns" to justify Sliwowski's highly intrusive search of B.H.'s labia; (3) that based upon Plaintiff's expert proof, material factual disputes exist on whether a student search policy can be formulated that preclude an award of summary judgment to Metro; and (4) that the Magistrate Judge erroneously characterized Plaintiff's theory of Metro's liability, that is, despite an express state policy, Metro lacked any policy to provide guidance to Metro school nurses on student searches that caused the offensive search at issue in this action.

In response, Defendants contend that the Magistrate Judge correctly applied the applicable law to the undisputed facts and that his conclusion on Defendant Sliwowski's qualified immunity is correct. The Defendant Metro asserts that all school nurses are appropriately trained and Plaintiff's proof cannot establish the requisite showing of deliberate

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indifference to impose Section 1983 liability on Metro. Moreover, Metro's proof is such a search policy is impossible for all possible searches.

For this Report and Recommendation and the objections thereto, the Court is required to conduct a de novo review. Fed. R. Civ. P. 72(b)(3).

A. Review of the Record1

The Magistrate Judge's Report and Recommendation, found the following facts that are undisputed:

In 2009, minor plaintiff B.H. was six years old and a student at Mt. View Elementary School—part of the Nashville Metropolitan School District. (Docket Entry No. 10 ¶ 4.) According to the record, B.H. had a history of bladder and urinary tract infections which would sometimes cause itching or discomfort to her genital area. (Id. ¶¶ 4-5.)
In late October of that year, B.H.'s mother, plaintiff Melissa Hearring, notified the school that B.H. was suffering from another bladder/urinary tract infection and was scheduled for an appointment with her physician on October 30. (Id. 4.) On October 28, B.H.'s teacher called Ms. Hearring to inform her that B.H. had complained during class of itching and discomfort. (Id. ¶ 5.) During the call, Ms. Hearring explained that such symptoms were consistent with B.H.'s condition and reminded the teacher of B.H.'s upcoming doctor's appointment. (Id.)
The next day, October 29, B.H. complained to her teacher again of pain and itching, and the teacher decided to escort B.H. to the school nurse's office a little before 2:00 p.m. (Docket Entry No. 33 ¶ 14.) However, because the nurse was administering medication to a diabetic student at the time, B.H. waited in the school secretary's office until the nurse was free. (Docket Entry No. 23 ¶¶ 6-7.)

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The secretary, Pam Back, tried to reach Ms. Hearring by phone, but was unable to get th[r]ough to her and left Ms. Hearring a voice message instead. (Docket Entry No. 33 ¶ 16.)
The school nurse was defendant Karen Sliwowski. (Docket Entry No. 32 ¶ 2.) Defendant Sliwowski had been working as a registered nurse since 1996 (Docket Entry No. 23 ¶ 2.) and had been employed by the Metropolitan Public Health Department as a school nurse since November, 2008. (Docket Entry No. 32 ¶ 6.) Nurse Sliwowski worked at several different schools each day and did not arrive at Mt. View Elementary until around 2:00 p.m. on October 29. (Docket Entry No. 23 ¶ 5; Docket Entry No. 33-2, pg. 8, lines 11-21.)
After finishing her scheduled appointment with the diabetic student, Nurse Sliwowski took B.H. to the school health office to examine her. (Docket Entry No. 33 ¶ 14.) Ms. Back explained to Nurse Sliwowski that B.H. had come to the office complaining of pain and itching in her genital area, but Nurse Sliwowski was not aware at the time that B.H. was suffering from a urinary tract infection and did not inquire about B.H.'s medical history. (Docket Entry No. 33-1, pg. 15, line 23 through pg. 16, line 4.)
In order to examine B.H., Nurse Sliwowski took her to a restroom normally reserved for teachers. (Docket Entry No. 33 ¶ 14.) At Nurse Sliwowski's suggestion, Ms. Back accompanied them, so that someone would be present to observe the examination. (Id.) In the restroom, Nurse Sliwowski asked B.H. to remove her pants and underwear and to squat down. (Id.) She further asked B.H. to open her labia so that Nurse Sliwowski could inspect for any redness or irritation. (Id; Docket Entry No. 23 ¶ 12.) Nurse Sliwowski did not touch B.H. during the course of this inspection and claims that she was never closer than one to two feet away. (Docket Entry No. 23 ¶ 12). Finding no redness or irritation, Nurse Sliwowski dismissed B.H. back to class. (Id.)
After performing the examination, Nurse Sliwowski called Ms. Hearring, but was unable to reach her. (Docket Entry No. 33 ¶ 17.)
When she returned home after school on October 29, 2009, B.H. told her parents about Nurse Sliwowski's examination. (Docket Entry No. 10 ¶ 6). Plaintiffs assert that B.H. was "confused, humiliated, and frightened" by the experience. (Id.)
The parties agree that Nurse Sliwowski received no training from the Metro Public Health Department concerning whether and under what circumstances examining a student's genitals is appropriate. (Id, ¶¶ 10; Docket Entry No. 33-9 ¶ 1.) The next day, Nurse Sliwowski contacted her supervisor, Stephanie Blansett, to explain what had happened. (Docket Entry No. 24 ¶ 14.) On November 3, 2009, Ms. Blansett issued Nurse Sliwowski a written reprimand for failing to send a note home with B.H. as required by the School Health Clinical Manual in cases

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when a nurse cannot reach a parent by phone. (Docket Entry No. 24-3.) The reprimand did not criticize Nurse Sliwowski for the examination itself, but did recommend that, in the future, Nurse Sliwowski consult with a supervisor "when you encounter an unfamiliar situation." (Id.) Ms. Blansett further noted, however, that "[t]here is no question as to your good intentions in this situation. I have no doubt, nor does our director, that you only wanted to help this student receive the appropriate care." (Id.)

(Docket Entry No. 69, Report and Recommendation at 2-4).

In her objections, Plaintiff cites additional proof that Sliwowski stated that she had not observed B.H. "walking funny," but she wanted to make sure that B.H. "did not have an injury that I needed to be aware or something that would require emergency care." (Docket Entry No. 33, Exhibit 10, Cosby Rule 26 Statement at 5; Exhibit 2, Sliwowski Deposition at pp. 9, 12). According to Sliwowski, "child abuse was not my concern in my head when I saw the student." Id.; Exhibit 2 at p. 19. Sliwowski stated that she "could not diagnose" a urinary tract infection by her visual examination of B.H.'s labia. Id. at Exhibit 2 at pp. 19-20. As to whether Sliwowski's actions were correct, Sliwowski's nursing supervisor replied "No." (Docket Entry No. 33, Exhibit 5, Blansett Deposition at pp. 22-23).

Sliwowski did not know if parental permission were necessary to conduct a genital examination of a Metro public school student. Id., Exhibit 10, at 6; Exhibit 1, Sliwowski Deposition at p. 9. Sliwowski lacked access to B.H.'s medical records and citing patient confidentiality, Sliwowski did not request Pam Back, the school secretary who observed Sliwowski's examination, if B.H. had prior physical problems. Id.; Exhibit 1 at p. 15; Exhibit 2 at pp. 13, 17. Sliwowski also did not make a written record of her examination that is required for...

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