E.W. v. Dolgos

Decision Date12 February 2018
Docket NumberNo. 16-1608,16-1608
Citation884 F.3d 172
Parties E.W., a minor, BY AND THROUGH her next friend and mother, T.W., Plaintiff–Appellant, v. Rosemary DOLGOS, School Resource Officer, in her individual capacity, Defendant–Appellee, and Wicomico County Sheriff’s Department, Defendant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC, Salisbury, Maryland, for Appellant. John Francis Breads, Jr., Hanover, Maryland, for Appellee. ON BRIEF: Laura E. Hay, COCKEY, BRENNAN & MALONEY, PC, Salisbury, Maryland, for Appellant.

Before GREGORY, Chief Judge, WYNN, Circuit Judge, and SHEDD, Senior Circuit Judge.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn joined. Senior Judge Shedd wrote a separate opinion concurring in the judgment.

GREGORY, Chief Judge:

This matter involves a school resource officer’s decision to handcuff a calm, compliant elementary school student for fighting with another student three days prior. The child brought a claim under 42 U.S.C. § 1983 for excessive use of force in violation of the Fourth Amendment and several state law claims. On a motion for summary judgment, the district court concluded that the officer’s conduct did not amount to a constitutional violation and that the officer was entitled to both federal qualified immunity and state statutory immunity under the Maryland Tort Claims Act ("MTCA"). For the reasons that follow, we affirm the district court’s judgment.


Because this case arises from a grant of summary judgment, we set forth the material facts in the light most favorable to Appellant E.W., the non-movant. Henry v. Purnell , 652 F.3d 524, 527 (4th Cir. 2011) (en banc).

On Tuesday, January 6, 2015, ten-year-old E.W. rode a school bus to East Salisbury Elementary School in Salisbury, Maryland. E.W. sat in an aisle seat on one side of the bus while another student, A.W., sat diagonally across from her in an aisle seat one row behind E.W. on the opposite side of the bus. The two schoolgirls both had their feet in the aisle: E.W. was facing sideways with her feet in the aisle, and A.W. was facing forward with her left leg in the aisle, extended in the direction of E.W.

Video footage from the school bus’s surveillance camera shows A.W. swaying her left knee from side to side in the aisle. ECF No. 18 (DVD filed with Joint Appendix, hereinafter "Video"), at 0:10. Several seconds later A.W. raised her left leg in the air and made a sudden, stomping motion in the direction of E.W.’s leg. Video 0:24. E.W. later reported that A.W. had stomped on her shoe. In response to the stomp, E.W. immediately stood up and faced A.W., who was slouched in her seat. Video 0:26. The bus driver then asked E.W. what she was doing. E.W. sat down, took off her backpack, and removed what appeared to be two lanyards from around her neck. Video 0:26–38. A few seconds later, E.W. stood up again and raised her leg towards A.W. Video 0:40. As E.W. raised her leg, A.W., still sitting, also raised hers. Video 0:40. Because A.W. was slouched in her seat, she was able to extend her leg further than she would have sitting fully upright. The two girls appear to trade kicks before E.W. put her leg down and A.W. slid lower into her seat. Video 0:41.

E.W. then stood over A.W. and began hitting her, swinging her arms downward because of their height difference. Video 0:41–45. Although the seat in front of A.W. obscured the camera’s view of the scuffle, the way A.W. was sitting suggests that E.W.’s swings likely landed on A.W.’s left arm, shoulder, and possibly her head. Video 0:46–48. After four seconds, E.W. returned to her seat. Video 0:46–48. Shortly thereafter, E.W. looked at A.W., stood up, and again moved in A.W.’s direction. Video 0:54–55. A.W. raised her leg in the air, and E.W. kicked at A.W.’s shoe several times while A.W. kicked back. Video 0:56–59. During the exchange of kicks, A.W. appeared to laugh and say something to E.W. Video 0:56–59.

This exchange drew the attention of the bus driver, who called both E.W. and A.W. to the front of the bus and eventually suspended both girls from the bus for three days. Video 1:00–2:15; J.A. 22–23.

On Friday, January 9, 2015, the school contacted Appellee Rosemary Dolgos, a deputy sheriff and school resource officer ("SRO") in Wicomico County, about the scuffle. When she arrived at the school, Dolgos watched the surveillance video described above. Dolgos spoke to A.W. first, asking her if she was injured. A.W. pulled up her left pant leg, and Dolgos observed "two small, bluish bruise[s]" above the left knee and one on the side of A.W.’s leg. J.A. 23. Notably, no other injuries, including upper body injuries, were reported.

E.W. was then removed from class and placed in a closed office with Dolgos and two school administrators. Dolgos told E.W. that she was there to discuss what took place on the bus. But, in Dolgos’s estimation, "E.W. [did not] seem to care." J.A. 23. E.W. explained, "A.W. stepped on my shoe so I kicked her and started to hit her." J.A. 23. Dolgos attempted to emphasize to E.W. the seriousness of the situation and the possible repercussions, telling her that adults could be jailed for such behavior. Still, in Dolgos’s opinion, "E.W. continued to act as if the situation simply was not a ‘big deal.’ " J.A. 23. Dolgos then decided to take E.W. into custody.

Dolgos placed E.W. in handcuffs from behind and reseated her. Dolgos inserted two fingers between the handcuffs and E.W.’s wrists to ensure that they were not too tight. In her affidavit, Dolgos stated that she was concerned about the physical safety of herself and the school administrators because of both the incident she observed in the surveillance video and E.W.’s apathy. Dolgos expressed concern in the affidavit that E.W. might act violently against her or someone else if she attempted to walk E.W. from the school to her patrol car. Dolgos also admitted, however, that she had no idea whether E.W. had "any past or current behavioral issues or past involvements with law enforcement." J.A. 24. According to Dolgos, E.W. stood 4’4" and weighed about 95 pounds, while Dolgos stands 5’4" and weighs 155 pounds.

Immediately after being handcuffed, E.W. began to cry. She explained that she did not want to go to jail and that she would not hit A.W. again. Dolgos kept her handcuffed for about two minutes as she cried and apologized. Dolgos averred that E.W. never complained that the handcuffs were too tight or displayed bruises to her. Rather, "[i]n response" to E.W.’s show of remorse, Dolgos decided not to arrest E.W. and removed the handcuffs. J.A. 24–25. "Based on [E.W.’s] remorse," Dolgos further decided to release E.W. to her parents. J.A. 25. The school contacted E.W.’s mother, T.W., and Dolgos informed T.W. that she would refer the matter to the Wicomico County Department of Juvenile Services. T.W. responded by asking, "[f]or a kid fight?" and "[s]o you’re going to put my 10 year old daughter in the system when she’s 10?" J.A. 25. Frustrated and upset by the treatment of her daughter, T.W. retrieved E.W. from the school.

On December 29, 2015, E.W., by and through T.W., filed this suit against Dolgos,1 alleging (1) a violation of the Fourth Amendment under 42 U.S.C. § 1983 for unreasonable seizure and excessive force; (2) a violation of Article 26 of the Maryland Declaration of Rights; (3) battery; and (4) assault. Dolgos filed a motion to dismiss or, in the alternative, for summary judgment, which the district court construed as one for summary judgment and then granted. In a short paragraph, without citing any case law, the district court concluded that Dolgos’s actions did not amount to excessive force because E.W. was handcuffed for only two minutes and then released to her mother. The court further concluded that Dolgos was "at least" entitled to qualified immunity as to the § 1983 claim. J.A. 71. And as to the state law claims, the court found that E.W. failed to prove that Dolgos acted with malice or gross negligence. E.W. timely appealed.


E.W. first maintains that the district court erred by granting summary judgment to Dolgos for her § 1983 claim. We review de novo a district court’s order granting summary judgment.2 See Smith v. Ray , 781 F.3d 95, 100 (4th Cir. 2015). "Summary judgment is appropriate only if taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, ‘no material facts are disputed and the moving party is entitled to judgment as a matter of law.’ " Purnell , 652 F.3d at 531 (quoting Ausherman v. Bank of Am. Corp. , 352 F.3d 896, 899 (4th Cir. 2003) ).

E.W. argues that the district court erred by concluding that Dolgos did not use excessive force and was entitled to qualified immunity. Qualified immunity shields government officials from liability in a § 1983 suit so long as their conduct did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). To determine whether an officer is entitled to qualified immunity, the court must examine (1) whether the plaintiff has demonstrated that the officer violated a constitutional right and (2) "whether that right was clearly established at the time of the alleged violation." Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst , 810 F.3d 892, 898 (4th Cir. 2016) (quoting Raub v. Campbell , 785 F.3d 876, 881 (4th Cir. 2015) ). To defeat the officer’s entitlement to immunity, the answer to both questions must be in the affirmative. Id.

Courts are no longer required to analyze these questions sequentially, but it is often the "better approach" to "determine first whether the plaintiff has alleged a deprivation of a constitutional right at all." Id. ...

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