Spann for Spann v. Tyler Independent School Dist., 88-2871

• Decision Date: 29 June 1989
• Docket Number: No. 88-2871,88-2871
• Citation: 876 F.2d 437
• Parties: 54 Ed. Law Rep. 121 Janet SPANN, as Next Friend for Jason Burrow SPANN, a Minor, Plaintiffs-Appellees, v. TYLER INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 437

876 F.2d 437

54 Ed. Law Rep. 121

Janet SPANN, as Next Friend for Jason Burrow SPANN, a Minor Plaintiffs-Appellees, v. TYLER INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.

No. 88-2871.

United States Court of Appeals, Fifth Circuit.

June 29, 1989.

John C. Hardy, Amy B. Drott, Hardy & Atherton, Tyler, Tex., for defendant-appellant.

T.J. Baynham, Jr., Bill Frizzell, Tyler, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN, WILLIAMS and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Janet Spann, as next friend of Jason Burrow Spann, brought this section 1983 suit against the Tyler, Texas, Independent School District for the sexual abuse suffered by Jason from a school bus driver, Dalton Glen Jones. Holding that the abuses did not occur as a result of any officially sanctioned policy of the school district, we reverse.

I

This case is a section 1983 case brought by the next friend of a minor who, at the time the alleged constitutional tort first occurred, was a six-year-old, first-grade, special-education pupil at an elementary school in the Tyler, Texas, Independent School District ("TISD"). The boy regularly rode to school in a bus driven by Jones. While acting in his capacity as a school employee, as well as on at least one occasion during the summer, Jones abused the boy sexually. Although, after the first incident, it was reported to Rhodes, the principal, that Jones was suspected of abusing Jason, the jury apparently found that Rhodes did not properly investigate the matter. In any event, there were subsequent incidents of abuse. When the boy's mother discovered what had happened, she filed this section 1983 suit against both Jones and TISD on June 24, 1986. On July 15, 1986, TISD filed a motion to dismiss. A motion for severance was filed on March 31, 1988, requesting that the action against Jones, who had not answered in this case and was therefore in default, be severed from the case against TISD. An order was entered on April 28, 1988, granting the plaintiff's motion for severance, and another order was entered granting an interlocutory judgment against Jones since he had failed to appear or defend. The case against TISD was tried to a jury on March 23, 24 and 25, 1988. At the end of Spann's case-in-chief, TISD moved for a directed verdict on insufficiency of the evidence. After hearing argument of counsel, the court denied the motion. On March 25, 1988, the jury, answering interrogatories propounded by the court, returned its verdict. On May 3, 1988, the court entered its judgment in favor of the plaintiff. On May 13, 1988, TISD filed its motion for j.n.o.v. or new trial, and on August 29, 1988, the court entered an order denying TISD's May 13 motion. TISD then filed a timely notice of appeal.

II

We will assume, arguendo, that Jones was acting under color of state law when he sexually abused Jason Spann, that Jason had a constitutional right to be protected from such conduct, and that Jason's school principal failed to investigate adequately the reports of Jones' conduct. We can thus narrow the issue in this case to whether Jason's injury resulted from acts committed pursuant to a policy of TISD, as required for section 1983 recovery against a municipality under Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

In Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986), the Supreme Court held that municipalities may be held liable under section 1983 only for acts for which the municipality is actually responsible, "that is, acts which the municipality has officially sanctioned or ordered." Spann, of course, does not suggest that Jones acted pursuant to TISD policy when he abused Jason; Spann argues, however, that the continued abuse of Jason occurred because of the TISD policy of delegating to the school principal the complete discretion whether to investigate reports of sexual abuse and determine their validity. This policy, it is argued, is responsible for the continuation of the constitutional violations because the principal did not investigate the first, or any, allegations against Jones. Such an investigation, Spann contends, would have resulted in reporting the incident to the proper authorities and would have prevented the repeated abuse of Jason.

We cannot agree that TISD is liable under the theory. According to the Supreme Court,

[t]he language of section 1983, read against the background of the ... legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular ... a municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under section 1983 on a respondent superior theory.

Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (emphasis supplied). The repetition of Jason's injury was not caused by school board policy: the school board had a perfectly reasonable policy for dealing with reported instances of sexual abuse. Instead the injury was caused by the failure of an employee properly to exercise the discretion granted him by the policy of TISD. To hold TISD liable for the omissions of the principal would fly in the face of Monell 's explicit holding that the school board cannot be held liable for the acts of its employees on the basis of respondeat superior. "If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior." City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 925, 99 L.Ed.2d 107 (1988). TISD did not officially sanction or order the error in judgment of the school principal, and thus we reject the notion that TISD is liable for the unfortunate injury to Jason Spann. The judgment of the district court is therefore

REVERSED.

JOHN R. BROWN, Circuit Judge, dissenting:

Agreeing arguendo with all the various and sundry assumptions made arguendo in the Court's opinion, I disagree with my brothers' complete reversal of the judgment entered on the jury verdict on the stated ground that "[t]o hold TISD liable for the omissions of the principal would fly in the face of Monell 's explicit holding that the school board cannot be held liable for the acts of its employees on the basis of respondeat superior." At 439.

The "official policy," ¹ as defined in the Court's opinion, is TISD's delegation to school principals of the investigation and action thereon of allegations or reports of sexual abuse of school students to determine their validity and take appropriate action. The Court holds, however, that such policy did not cause Jason's injury. Indeed "the school board had a perfectly reasonable policy for dealing with reported instances of sexual abuse." Id. at 438. The Court then concludes that Jason's injury "was caused by the failure of an employee [the school principal] properly to exercise the discretion granted him by the policy of TISD." Id. at 438. This leads to my principal difference. If the policy commits everything to a subordinate then the actions of that subordinate, no matter whether conducted prudently or imprudently, become, are the actions of the entity adopting such policy. And if that delegatee of complete power negligently carries out its function, that is not a case of respondeat superior. It is, in the analogy to tort law, the act of the principal.

As stated most favorably to the Court's position, the "official policy" was that the school principal is invested with the full power to investigate and determine the validity of reports of sexual abuse and take appropriate action. The Court's opinion, presumably relying on Principal Rhodes' declaration that he had unbridled discretion to decide whether an accusation of sexual abuse had merit before reporting it to D.H.S., is consistent with this reading.

I agree with the Court's assessment that the jury, if responding to a properly submitted inquiry, would have found this to be the correct statement of TISD's policy. But I swim out of the mainstream and into the turbulent rapids when the opinion implicitly determines that the jury did not, could not, have found Rhodes served as a "final" policymaker to thus trigger Monell municipal...