Russell By Russell v. Fannin County School Dist.

• Citation: 784 F. Supp. 1576
• Decision Date: 21 February 1992
• Docket Number: No. 2:91-CV-0027-WCO.,2:91-CV-0027-WCO.
• Parties: Nathan Andrew RUSSELL, a minor child, by his father and guardian, Frank D. RUSSELL, and Frank D. Russell and Barbara L. Russell v. The FANNIN COUNTY SCHOOL DISTRICT, et al.
• Court: U.S. District Court — Northern District of Georgia

784 F. Supp. 1576

Nathan Andrew RUSSELL, a minor child, by his father and guardian, Frank D. RUSSELL, and Frank D. Russell and Barbara L. Russell v. The FANNIN COUNTY SCHOOL DISTRICT, et al.

No. 2:91-CV-0027-WCO.

United States District Court, N.D. Georgia, Gainesville Division.

February 21, 1992.

Patrick W. McKee, Atlanta, Ga., for plaintiffs.

Phillip L. Hartley, Gainesville, Ga., for defendants.

ORDER

O'KELLEY, Chief Judge.

Plaintiff, Nathan Andrew Russell ("Andy") and plaintiffs, Frank and Barbara Russell, his parents, have brought this civil rights action against the Fannin County School District, the members of its board of education, its superintendent, and the high school principal seeking damages and other relief as a result of injuries Andy sustained when another student, Nathan Lewis ("Nathan"), hit Andy several times in the head with his fists in the hall between classes at Fannin County High School.

Presently before the court are plaintiffs' and defendants' cross motions for summary judgment. Defendants seek summary judgment as to all claims, and plaintiffs seek summary judgment as to the defendants' liability under section 1983. The defendants requested a hearing on their motion for summary judgment, and a hearing was held on January 16, 1992.

FACTS

During lunch period on October 2, 1990, Gary Mealer, an assistant principal at Fannin County High School, was summoned to the break area of the school by Mr. Payne, a teacher assigned to monitor the students in the break area, known as the "commons area" at the high school. When Mr. Mealer arrived, Mr. Payne told him that a crowd of boys had gathered and he thought that a problem was developing, but it now appeared that nothing was happening and the group had disbanded. Nevertheless, Mr. Mealer remained in the commons area to help supervise the students gathering between lunch and their fourth period and to monitor the group of students identified by Mr. Payne. When the bell rang to end lunch period, Mr. Mealer observed Andy walking quickly along the classroom wing toward the outside entrance at the end of the building. He then saw Nathan with a group of students exit the commons area and begin walking along the classroom wing in the same direction as Andy. Immediately after Andy entered the building, Nathan and his group began running after Andy. Mr. Mealer then began running after Nathan but by the time he reached the two boys, Nathan had already beat up Andy.

The animosity between Nathan and Andy began several weeks earlier when Nathan began to bully and pick on Andy in math class.¹ Andy never reported Nathan's conduct to teachers or administrators at Fannin County High School. According to Andy, the October 2, 1990, incident began during lunch when Andy was sitting in the lunchroom with some friends. Nathan and another student approached Andy and accused him of calling Nathan a "son of a bitch." Andy denied the accusation and Nathan left the lunchroom.

After lunch, Andy and his friends went to an area known as the "outside commons" where Nathan approached Andy again and asked him if he wanted anything of him. The boys and their friends exchanged looks and a few words during the remainder of the break. When the bell rang, Andy began walking along the outside of the building to his class. As he approached the entrance of the building, Nathan began chasing him. Nathan caught Andy and hit him several times in the head which Andy alleges rendered him unconscious. Andy suffered a broken hand, a fractured left orbit and some damage to his left eye as a result of Nathan's attack. As punishment for beating up Andy, Nathan was required to serve a five-day in-school suspension², the penalty for first offense fighting.³

Andy's parents were frustrated because they believed that Nathan's punishment was not harsh enough under the circumstances. It was their opinion that school officials had wrongly deemed the incident a routine fight and punished Nathan only for first offense fighting.⁴

After Nathan served the in-school suspension, Andy alleges that Nathan continued to harass him, and school officials did nothing to protect Andy until February 15, 1991.⁵ Andy complained of the alleged harassment to his parents and they complained to school officials.

Andy's parents allege that Andy has not been the same since Nathan's attack. Specifically, they allege that Andy has been a recluse following Nathan's attack; for example, Andy spends a lot of time alone in his room, no longer participates in family conversations, and has lost interest in going to college and pursuing a career. Andy's parents attribute Andy's change in behavior to his fear of another attack by Nathan.

In Count I of the complaint, Andy Russell has alleged a federal constitutional claim for violation of his rights under the Fourteenth Amendment as provided in 42 U.S.C. § 1983. In Count II, Andy's parents have alleged a violation of their constitutional right to the society and companionship of their son. Count III alleges a state tort law claim for negligent supervision.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is only proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." Fed. R.Civ.P. 56(c). Because the procedure deprives the parties of a trial on the issues, the court must be careful to ensure that only those claims for which there is no need for a factual determination as to any material fact are disposed of by summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In addition, a court evaluating a summary judgment motion must view the evidence in the light most favorable to the non-movant. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988); Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986), reh'g denied, 815 F.2d 66 (1987). To survive a motion for summary judgment, the non-moving party need only present evidence from which the trier of fact might return a verdict in his favor. Samples, 846 F.2d at 1330.

However, consideration of a summary judgment motion does not lessen the burden on the non-moving party; the non-moving party still bears the burden of coming forward with sufficient evidence on each element that must be proved. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990); see Celotex Corp. v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. "If on any part of the prima facie case there would be insufficient evidence to require submission of the case to the jury, the court must grant the motion for summary judgment for the defendant." Earley, 907 F.2d at 1080. In Earley, the Eleventh Circuit further emphasized:

"The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.... Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.... In such circumstances, there can be no genuine issue of material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.... If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Id. (emphasis in original).

Here, even liberally construing the plaintiffs' pleadings and other evidence submitted, the court finds that the facts as agreed upon by the parties preclude the plaintiffs' recovery under section 1983 because the plaintiffs have failed to establish the existence of an element essential to their case: namely, that Andy has been deprived of constitutional rights sufficient to allow recovery under 42 U.S.C. § 1983.⁶

B. Section 1983 Liability

To prevail in a civil rights action under 42 U.S.C. § 1983, a plaintiff must show that the defendants, under color of state law, deprived the plaintiffs of a right secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Cornelius v. Town of Highland Lake, Ala., 880 F.2d 348, 351 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). Section 1983 alone creates no substantive rights; rather, it provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2674 n. 3, 61 L.Ed.2d 433 (1979); Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir.1987). An underlying constitutional right must exist before a section 1983 action will lie. Wideman, 826 F.2d at 1032.

Plaintiffs allege that defendants breached a constitutional duty to the plaintiffs in failing to protect Andy from threats, intimidation, and bodily injury from another student. Plaintiffs aver that defendants knew or should have known of the school's problem with fighting. In particular, plaintiffs contend that defendants failed to adopt a policy to effectively prohibit fighting in Fannin County High School. Plaintiffs maintain if the Fannin County School Board had adopted and followed policies requiring harsher punishments for fighting, Nathan would have been deterred from beating up Andy.

In order to properly address the plaintiffs' claims, the court must first consider the threshold issue of whether the governmental entity (here, defendants) had a constitutionally recognized duty to protect the plaintiff, Andy Russell, from the threats, intimidation and...