Mann v. Palmerton Area Sch. Dist.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: VANASKIE, Circuit Judge
• Citation: Mann v. Palmerton Area Sch. Dist., 872 F.3d 165 (3rd Cir. 2017)
• Decision Date: 22 September 2017
• Docket Number: No. 16-2821.,16-2821.
• Parties: Kenneth MANN, as parents and co plenary guardians of the estate of Sheldon Mann, an incapacitated person, and in their own right; Rose Mann, as parents and co plenary guardians of the estate of Sheldon Mann, an incapacitated person, and in their own right, Appellants v. PALMERTON AREA SCHOOL DISTRICT; Christopher Walkowiak, individually and in his official capacity as a football coach

872 F.3d 165

Kenneth MANN, as parents and co plenary guardians of the estate of Sheldon Mann, an incapacitated person, and in their own right; Rose Mann, as parents and co plenary guardians of the estate of Sheldon Mann, an incapacitated person, and in their own right, Appellants

v.PALMERTON AREA SCHOOL DISTRICT; Christopher Walkowiak, individually and in his official capacity as a football coach

No. 16-2821.

United States Court of Appeals, Third Circuit.

Argued April 27, 2017

Opinion Filed: September 21, 2017

September 22, 2017

Howard J. Bashman, Esq. [Argued], Law Offices of Howard J. Bashman, 2300 Computer Avenue, Suite G-22, Willow Grove, PA 19090, Larry E. Bendesky, Esq., Adam J. Pantano, Esq., Robert W. Zimmerman, Esq., Saltz Mongeluzzi Barrett & Bendesky, 1650 Market Street, One Liberty Place, 52nd Floor, Philadelphia, PA 19103, Counsel for Appellants Kenneth Mann and Rose Mann

Thomas A. Specht, Esq. [Argued], Robin B. Snyder, Esq., Marshall Dennehey Warner Coleman & Goggin, P.O. Box 3118, Scranton, PA 18505, Counsel for Appellees Palmerton Area School District and Christopher Walkowiak

Before: MCKEE, VANASKIE, and RENDELL, Circuit Judges

OPINION OF THE COURT

VANASKIE, Circuit Judge

In November of 2011 Sheldon Mann, a football player for the Palmerton Area School District, experienced a hard hit during a practice session. While some players thought that Sheldon may have been exhibiting concussion-like symptoms, he was sent back into the practice session by his Coach, Appellee Chris Walkowiak. After being returned to practice, Sheldon suffered another violent collision and was removed from the practice field. He would later be diagnosed with a traumatic brain injury. In bringing a lawsuit against Palmerton Area and Walkowiak, Sheldon's parents asserted that by requiring Sheldon to continue to practice after sustaining the first substantial blow, Walkowiak had violated Sheldon's constitutional right to bodily integrity under a state-created danger theory of liability. Also, Palmerton Area, the Manns alleged, was accountable under Monell v. Department of Social Services of City of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The District Court ruled in favor of Walkowiak and Palmerton Area on summary judgment, finding that, while there was ample evidence to suggest that Walkowiak was culpable under a state-created danger theory of liability, a constitutional right to protection in the context presented here was not clearly established in 2011. Accordingly, the District Court granted Walkowiak qualified immunity and dismissed him from the lawsuit on that basis. As to Palmerton Area, the District Court found that the Manns had failed to present evidence sufficient to warrant a jury trial on the question of whether the school district had a custom or policy that caused a violation of Sheldon's constitutional rights. Accordingly, the District Court entered judgment in favor of Palmerton Area.

We agree with the District Court's conclusions pertaining to the claims against the football coach: Walkowiak's alleged conduct, if proven at trial, would be sufficient to support a jury verdict in favor of Mann on his state-created danger claim, but the right in question—to be free from deliberate exposure to a traumatic brain injury after exhibiting signs of a concussion in the context of a violent contact sport—was not clearly established in 2011. Accordingly, the District Court correctly ruled that Coach Walkowiak was entitled to qualified immunity. We also agree with the District Court that the Manns did not present sufficient evidence to warrant a jury trial on the Monell claim against Palmerton Area. We will therefore affirm the District Court's grant of summary judgment.

I.

Sheldon Mann was a student at Palmerton Area High School and had participated in its football program starting in July of 2008. Beginning in 2006, Walkowiak was a team coach and in 2011 was promoted to Head Coach. After being named Head Coach, Walkowiak received concussion and safety training at DeSales University. Because of this training he was aware of the signs and symptoms of a concussion.

On November 1, 2011, Sheldon, then a 17 year-old senior, was participating in practice and sustained a hard hit to his upper body area while playing the outside linebacker position as part of the "scout" team against the varsity starting team.¹

Walkowiak claims he did not see the hit, but did observe Sheldon "rolling" his shoulder. (JA 509.) Walkowiak testified at his deposition that he asked Sheldon if "he was all right," to which Sheldon replied, "I'm fine," and Sheldon continued to participate in the practice session.² (Id. )

In multiple depositions, Sheldon's teammates testified that they believed Sheldon was suffering from a concussion after this hit and were surprised that he was allowed to continue to practice. One teammate even testified that it was one of the "bigger hits" he had ever seen. (JA 1657.) Another teammate testified that after the first hit, Sheldon looked as though he was dizzy and was stumbling around the field, symptoms that this teammate believed to be associated with a concussion. And while not explicitly stating that they believed that Sheldon Mann was suffering from a concussion, other coaches testified that they were aware of the symptoms of a concussion and that standard procedure was to remove a student suffering from concussion-like symptoms from practice and have him seen by a trainer.

Approximately twenty plays after Walkowiak observed Sheldon rolling his shoulder, Sheldon sustained a second hard hit to the upper body area. Walkowiak walked over to Sheldon to ascertain his condition. Sheldon told Walkowiak that "it was the hardest hit he received in playing football." (JA 550). After this second hit, Sheldon was removed from the practice field. Practice ended about 10 minutes later, and Walkowiak then accompanied Sheldon to the trainer's room.

At the time of this incident, Palmerton Area had in place a series of policies and procedures outlined in its 2011-2012 Athletic Handbook. The Handbook required that any player suffering from injury or illness be excluded from participation in the sport until cleared by a physician, and explicitly stated that a student suspected to be injured must be removed from play and sent to the athletic trainer.

As a result of the violent hits Sheldon sustained on November 1, 2011, he suffered a traumatic brain injury and his parents have been appointed his guardians. The Manns brought this lawsuit, asserting that Palmerton Area and Walkowiak (together "Appellees") had deprived Sheldon of this constitutionally-protected right to bodily integrity. Specifically, they argued that Sheldon's constitutional rights were violated as a result of Walkowiak's exercise of authority in telling Sheldon to continue participating in football practice after sustaining a hit and exhibiting signs of a concussion. Plaintiffs also claimed that Sheldon's constitutional rights were violated as a result of Palmerton Area's failure to assure that injured student-athletes were medically cleared to resume participation in the sport, failure to enforce and enact proper concussion policies, and failure to train the coaches on a safety protocol for head injuries. The parties engaged in discovery, and on February 1, 2016, Appellees moved for summary judgment, arguing that there was insufficient evidence to establish a state-created danger claim against Walkowiak and a municipal liability claim against Palmerton Area. Walkowiak also asserted a right to qualified immunity. On June 2, 2016, the District Court granted summary judgment in favor of defendants Walkowiak and Palmerton Area. This appeal followed.

II.

The District Court possessed subject–matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of an order granting summary judgment is plenary. Curley v. Klem , 298 F.3d 271, 276 (3d Cir. 2002). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wright v. Corning , 679 F.3d 101, 105 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police , 71 F.3d 480, 482 (3d Cir. 1995) ).

III.

State actors sued in their individual capacity under Section 1983 are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or 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). When a qualified immunity defense is asserted, a court must determine (1) whether the facts alleged by the plaintiff make out a violation of a constitutional right, and (2) whether that right was clearly established at the time of the injury. Yarris v. Cty. of Del ., 465 F.3d 129, 140-41 (3d Cir. 2006) (internal citation omitted). In this case, the District Court determined that the first prong of the qualified immunity inquiry was satisfied: the Manns had presented sufficient evidence to warrant a jury trial on the question of whether Walkowiak had violated Sheldon's constitutional rights. It is to this part of the qualified immunity test that we first turn our attention.

A.

The Manns' state-created danger claim derives from the Fourteenth Amendment Due Process Clause, which provides that "[n]o state shall ... deprive any person of life, liberty, or property without due process of law[.]" U.S. Const. amend XIV, § 1. We have recognized a successful state-created danger claim when a plaintiff pleads that

(1) the harm ultimately caused [by the state actor's conduct] was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between

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