Ingraham v. Wright, No. 73-2078.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: RIVES, WISDOM and MORGAN, Circuit
• Citation: 498 F.2d 248
• Parties: Eloise INGRAHAM, as next friend, etc., et al., Plaintiffs-Appellants, v. Willie J. WRIGHT, I, Individually, etc., et al., Defendants-Appellees.
• Docket Number: No. 73-2078.
• Decision Date: 29 July 1974

498 F.2d 248 (1974)

Eloise INGRAHAM, as next friend, etc., et al., Plaintiffs-Appellants,
v.
Willie J. WRIGHT, I, Individually, etc., et al., Defendants-Appellees.

No. 73-2078.

United States Court of Appeals, Fifth Circuit.

July 29, 1974.

498 F.2d 249

COPYRIGHT MATERIAL OMITTED

498 F.2d 250

Alfred Feinberg, Miami, Fla., for plaintiffs-appellants

Frank A. Howard, Jr., Thomas G. Spicer, Leland E. Stansell, Jr., James A. Smith, Miami, Fla., for defendants-appellees.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

RIVES, Senior Circuit Judge:

More than a century ago, a member of the Supreme Court of Indiana made the following observation:

"The husband can no longer moderately chastise his wife; nor, according to the more recent authorities, the master his servant or apprentice. Even the degrading cruelties of the naval service have been arrested. Why the person of the schoolboy, `with his shining morning face,\' should be less sacred in the eye of the law than that of the apprentice or the sailor, is not easily explained."

Cooper v. McJunkin, 1853 (4 Ind. (Porter) 290 (Stuart, J.). In the present case, we consider constitutional issues related to corporal punishment in the public school system of Dade County, Florida.

Plaintiffs filed on January 7, 1971, a complaint containing three counts. Counts One and Two were individual actions for compensatory and punitive damages brought by two junior high school students under 42 U.S.C. §§ 1981-1988, with jurisdiction claimed under 28 U.S.C. § 1331 and § 1343. The students claimed personal injuries resulting from corporal punishment administered by certain defendants in alleged violation of their constitutional rights. Count Three of the complaint was a class action, also brought under 42 U.S.C. §§ 1981-1988, with jurisdiction claimed under 28 U.S.C. § 1331 and § 1343. This class action filed on behalf of all students in the public school system of Dade County sought injunctive and declaratory relief against the use of corporal punishment throughout the county school system.

The plaintiffs presented their evidence on Count Three of the complaint

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in a week long trial before the district court without a jury. Those who testified included sixteen students or former students, several parents and other relatives of students, a professor of educational psychology, and a number of school teachers and administrators, including the defendant Superintendent Edward Whigham. The evidence also included a photograph, stipulations, answers to interrogatories, school records and medical reports. At the close of the plaintiffs' case, the defendants moved for dismissal under Rule 41(b), F.R. Civ.P., which in relevant part provides

"After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits."

The district court noted in its order that counsel for the parties then agreed that the evidence offered to support Count Three "would also be considered by the Court, as if upon motion for directed verdict, as having been offered on Counts One and Two, provided that certain additional testimony desired by Plaintiffs' counsel were placed in the record by deposition or stipulation." Thus, this case really involves one equity case, styled Count Three, and two law cases, styled Counts One and Two. The additional testimony was summarized in a stipulation. On February 23, 1973, the district court first dismissed Count Three of the complaint, and then concluded that a jury could not lawfully find that either of the plaintiffs in Counts One and Two sustained a deprivation of constitutional rights.

We hold that the district court erred in dismissing each of the three counts of plaintiffs' complaint, and, therefore, reverse and remand for further proceedings.

I.

JURISDICTIONAL ISSUES

A. Defendants assert that there is no federal jurisdiction over Count Three under 42 U.S.C. §§ 1981-1988 and 28 U. S.C. § 1331 and § 1343, because the Dade County School Board and the Superintendent of Schools in their official capacities are not "persons" amenable to civil rights actions. In support of this claim defendants cite City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109. In City of Kenosha, the Supreme Court held that two municipalities in Wisconsin were not "persons" within the meaning of 42 U.S.C. § 1983. In Campbell v. Masur, 5 Cir. 1973, 486 F.2d 554, where a plaintiff sued a school superintendent and a school board in their official capacities only, the court sent the case back to the district court for re-examination and further consideration in light of City of Kenosha.¹

Plaintiffs have sued Superintendent of Schools Edward L. Whigham in his individual capacity, as well as in his official capacity.² It is clear that

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the school superintendent, sued as an individual, is a "person" within the meaning of § 1983. Sterzing v. Fort Bend Independent School District, 5 Cir. 1974, 496 F.2d 92, p. 93, n. 2; United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 5 Cir. 1974, 493 F.2d 799. To hold otherwise would suggest the impossibility of suing any government official or employee under § 1983. City of Kenosha, supra, does not require or even intimate the possibility of such a result. The right to bring a § 1983 action against a state or local official is well established. See Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, and its progeny. Also see Moor v. County of Alameda, 1973, 411 U.S. 693, 700, 93 S.Ct. 1785, 36 L.Ed.2d 596

Prior to the decision in City of Kenosha, a number of courts had held that cities were proper defendants under § 1983 where equitable relief was sought. See discussion in City of Kenosha v. Bruno, supra, 412 U.S. at 512-514, and at 516ff, 93 S.Ct. 2222 (Douglas, J., dissenting in part). The complaint in the present case, and all of the proceedings in the district court, occurred before City of Kenosha was decided. Taking these factors into consideration, the district court should on remand grant the likely request of plaintiffs to add the individual members of the Dade County School Board as parties defendant under Count Three of the complaint. Without regard to whether the plaintiffs may ultimately be entitled to any equitable relief against the School Board or its members, fairness and efficient judicial administration justify the addition of the individual school board members as parties insofar as the plaintiffs seek declaratory and equitable relief restraining the School Board from authorizing or implementing corporal punishment in Dade County. See Rule 21, F.R.Civ.P.; Mullaney v. Anderson, 1952, 342 U.S. 415, 72 S.Ct. 428, 96 L. Ed. 458; United States v. Louisiana, 1957, 354 U.S. 515, 77 S.Ct. 1373, 1 L. Ed.2d 1525; Halladay v. Verschoor, 8 Cir. 1967, 381 F.2d 100; Rakes v. Coleman, E.D.Va.1970, 318 F.Supp. 181; 3A Moore ¶ 31.051.

B. Although not argued by the parties on this appeal, it is appropriate to examine whether Count Three of the instant case should have been heard by a three-judge district court.³ Though neither party requested a three-judge district court, consent, either implied or express, cannot authorize a single judge to hear a case that falls within the terms of 28 U.S.C. § 2281. Sands v. Wainwright, 5 Cir. 1973, 491 F.2d 417, 424 (en banc); Borden Co. v. Liddy, 8 Cir. 1962, 309 F.2d 871; Americans United for Sep. of Church & State v. Paire, 1 Cir. 1973, 475 F.2d 462. The district court in the present case considered the question and ruled that a three-judge district court was not required. We agree.

Plaintiffs sought injunctive relief restraining the defendants, their agents and employees from inflicting any form of corporal punishment upon students in the Dade County public school system.⁴ Plaintiffs did not request an injunction restraining the enforcement of any specific Florida statute, and in oral argument before this Court, counsel for plaintiffs stated, "We are not challenging the constitutionality of the Florida statute." Section 232.27 of Florida Statutes Annotated, provides:

"Each teacher or other member of the staff of any school shall assume such authority for the control of the

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pupils as may be assigned to him by the principal and shall keep good order in the classroom and in other places in which he is assigned to be in charge of pupils, but he shall not inflict corporal punishment before consulting the principal or teacher in charge of the school, and in no case shall such punishment be degrading or unduly severe in its nature."

The injunctive relief sought by plaintiffs would not conflict with this provision, and would not extend beyond Dade County. By establishing limits upon the administration of corporal punishment, the statute inferentially permits local school boards to authorize such punishment. This statute does not mandate or require corporal punishment, however, nor does it compel local school boards to adopt regulations providing for corporal punishment. In fact, the statute would not prevent a local board from prohibiting corporal punishment in certain...