Hearring v. Sliwowski

• Decision Date: 27 March 2013
• Docket Number: No. 12–5194.,12–5194.
• Citation: 712 F.3d 275
• Parties: Melissa HEARRING, Individually and as natural mother and next friend of B.H., a minor child, Plaintiff–Appellee, v. Karen SLIWOWSKI, Individually, Defendant–Appellant, Metropolitan Government of Nashville–Davidson County Tennessee, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

712 F.3d 275

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

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

No. 12–5194.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 22, 2013.

Decided and Filed: March 27, 2013.

ARGUED:Allison L. Bussell, Department of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, Tennessee, for Appellant. Phillip L. Davidson, Nashville, Tennessee, for Appellee. ON BRIEF:Allison L. Bussell, Kevin C. Klein, Department of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, Tennessee, for Appellant. Phillip L. Davidson, Nashville, Tennessee, for Appellee.

Before: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this case, a school nurse, Defendant–Appellant Karen Sliwowski (“Sliwowski”), conducted a visual examination of six-year-old female student B.H.'s genital area for medical purposes in response to the student's complaints of itching and discomfort in the area. The student's mother, Plaintiff–Appellee Melissa Hearring (“Hearring”), on behalf of B.H., alleges that this medical examination violated B.H.'s Fourth Amendment right to be free from unreasonable searches. The district court denied summary judgment and denied Sliwowski qualified immunity, finding that the visual examination, conducted without consent and in the absence of a medical emergency, was an unreasonable search that violated B.H.'s Fourth Amendment rights. On appeal, we conclude that the law was not clearly established regarding whether a medically motivated examination by a school nurse exposing a student's body constitutes a search subject to the protections of the Fourth Amendment. Accordingly, Sliwowski is entitled to qualified immunity, and we REVERSE the district court's denial of summary judgment as to Sliwowski. We REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

At the time of the events at issue, Hearring's daughter, B.H., was a six-year-old student attending Mt. View Elementary School in Davidson County, Tennessee. On October 27, 2009, while at school, B.H. complained of irritation in her genital area and that it “burned” when she urinated. See R. 33–4 (Back Dep. at 13–14) (Page ID # 456). This complaint was reported to the school's secretary, Pam Back (“Back”), who called Hearring and left a message regarding B.H.'s complaint. See id. Hearring returned the school's call that day and informed the school that B.H. had a history of chronic bladder infections. See id.

Two days later, on October 29, 2009, B.H. again came to the school office with the same complaint. See R. 33–4 (Ex. 2 to Back Dep.) (Page ID # 461). Back placed B.H. in the school's clinic to wait for the school's nurse, Sliwowski, who had not arrived at the school yet. See id. Back called Hearring and left a message. Id. After Sliwowski arrived at the school's campus, she met with Back, who informed Sliwowski of B.H.'s complaints, including that “she had pain when urinating, had trouble sitting and walked funny.” Appellee Br. at 5. Sliwowski then took B.H. into a private bathroom used by teachers, and Back accompanied her. See R. 33–1 (Ex. 1 to Sliwowski Dep.) (Page ID # 442). In an effort to assess the student, Sliwowski asked B.H. to pull down her pants and underwear, and Sliwowski then “did a visual check to see if the student had any reddened or irritated areas along her legs, and inner thigh area that could have been causing her discomfort.” Id. Sliwowski then asked B.H. to spread “her labia to check for redness.” See id. Sliwowski did not touch B.H. during the examination. Sliwowski also testified that there was no suspicion of child abuse motivating the examination. R. 33–1 (Sliwowski Dep. at 16) (Page ID # 435). Hearring alleges that B.H. was “confused, humiliated, and frightened” by the examination. R. 10 (Am. Compl.¶ 6) (Page ID # 41).

National and state nursing guidelines “restrict medical examinations of students and prohibit a genital examination of a student absent parental consent or a medical emergency.” Hearring v. Sliwowski, 872 F.Supp.2d 647, 654 (M.D.Tenn.2012). B.H.'s parents did not give consent prior to the examination. Appellee Br. at 6. Hearring's expert witness opined that in her view, “the visual inspection of B.H.'s genital area and the opening of her labia was not indicated nor appropriate under the specific circumstances of this case.” R. 33–10 (Expert Stmt. at 13) (Page ID # 545). The expert further opined that “performing a visual inspection of a child's genital area is not the norm, and parental consent would absolutely be needed in the absence of an emergency.” Id. at 12 (Page ID # 544).

On August 6, 2010, Hearring filed a complaint in the U.S. District Court for the Middle District of Tennessee naming Sliwowski as a defendant in her individual capacity and alleging that Sliwowski's visual examination of B.H. violated B.H.'s Fourth Amendment right to be free from unreasonable searches. R. 1 (Compl.) (Page ID # 1). The complaint was later amended to add Metropolitan Government of Nashville–Davidson County, Tennessee (“Metro”) as a municipal defendant, and Hearring alleged that the municipality was liable for the alleged unconstitutional search in virtue of its failure to train appropriately its school nurses. See R. 10 (Am.Compl.¶¶ 10–11) (Page ID # 42–43). Defendants moved for summary judgment, and Sliwowski argued that she was not liable on the basis of qualified immunity. See R. 26 (Defs.' Mot. for Summ. J. at 1) (Page ID # 357). The district court denied summary judgment with respect to both defendants, finding that B.H.'s constitutional rights were violated by the medical examination, and that because the right at issue was clearly established by prior precedent, Sliwowski was not entitled to qualified immunity. See Hearring, 872 F.Supp.2d at 673, 679. Sliwowski timely appealed.

II. JURISDICTION

Hearring's complaint, brought under 42 U.S.C. § 1983, alleges a constitutional violation, and thus subject-matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Although denials of summary judgment generally are not appealable, “denials of qualified immunity at the summary judgment stage that are based on the district court's ‘determination about pre-existing clearly established law’ ” are reviewable as final orders. Bomar v. City of Pontiac, 643 F.3d 458, 461 (6th Cir.2011) (quoting Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)); see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

III. ANALYSIS

A. Standard of Review

We review de novo “the district court's determination on the legal question of the availability of qualified immunity,” viewing the facts in the light most favorable to the plaintiff. Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494 (6th Cir.2008); see also Walker v. Davis, 649 F.3d 502, 503 (6th Cir.2011).

B. Qualified Immunity

Although violations of constitutional rights by government officials acting under color of state law are generally redressable through an action under § 1983, the doctrine of qualified immunity shields officials from liability “insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see Stoudemire v. Mich. Dep't of Corr., 705 F.3d 560, 567 (6th Cir.2013). “In determining whether qualified immunity applies, we ask, (1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established.” Bazzi v. City of Dearborn, 658 F.3d 598, 606–07 (6th Cir.2011) (internal quotation marks omitted); see, e.g., Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). We have discretion to decide which of these two questions to address first, considering the circumstances of the particular case before us. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In this case, as we explain below, “it is plain that a constitutional right [wa]s not clearly established but far from obvious whether in fact there is such a right.” Id. at 237, 129 S.Ct. 808. Because the constitutional-interpretation question of whether B.H.'s Fourth Amendment rights were violated “will have no effect on the outcome of the case,” we need not resolve it. Ashcroft v. al-Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). Accordingly, we will assume that Hearring has alleged a violation of a Fourth Amendment right and address whether that right was clearly established. See Waeschle v. Dragovic, 576 F.3d 539, 544 (6th Cir.2009) (addressing the clearly established prong first in the qualified-immunity analysis).

A government official will be liable for the violation of a constitutional right only if the right was “ ‘clearly established ... in light of the specific context of the case.’ ” Binay v. Bettendorf, 601 F.3d 640, 651 (6th Cir.2010) (quoting Scott, 550 U.S. at 377, 127 S.Ct. 1769). A right is clearly established if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see Grawey v. Drury, 567 F.3d 302, 313 (6th Cir.2009) (“The key determination is whether a defendant moving for summary judgment on qualified immunity grounds was on notice that his alleged actions were unconstitutional.”). Thus, “there are ‘limitations upon the extent to which a court may rely on holdings in contexts other than the one being considered to demonstrate...