Alаn James HOWARD, Sr. and Virginia Marie Howard, individually and as next friends of W.H., a minor child; Robert Rosasco and Kimberly Rosasco, individually and as next friends of L.R., a minor child, Plaintiffs-Appellees, v. KNOX COUNTY, TENNESSEE et al., Defendants, and Timothy Wiegenstein, individually, Defendant-Appellant.
No. 16-6629
United States Court of Appeals, Sixth Circuit.
Filed June 21, 2017
V.
Because Plaintiffs did not demonstrate that they were deprived of a protected property interest, they cannot prevail on each element of their procedural due process claim. Therefore, we AFFIRM the decision of the district court.
David Scott Bennett, Mary Christine DeCamp, Leitner, Williams, Dooley & Napolitan, Chattanooga, TN, for Defendant-Appellant
Before: BOGGS, MOORE, and McKEAGUE, Circuit Judges.
OPINION
KAREN NELSON MOORE, Circuit Judge.
From 2011 to 2014, Defendant Rebecca Shoemaker, a teacher‘s assistant at Halls Middle School (“Halls“) in Knox County, Tennessee, physically, verbally, and emotionally abused special-needs students, including minor Plaintiffs W.H. and L.R. Despite numerous complaints from parents and students that Shoemaker had committed specific acts of abuse, Defendant Timothy Wiegenstein, the principal of Halls, failed to investigate or take any action to stop Shoemaker‘s abuse. Instead, with knowledge of the risk that Shoemaker posed to special-needs children, Wiеgenstein heightened the risk by placing her in a special-needs classroom as a teacher‘s assistant. In that role, Shoemaker committed numerous acts of abuse against the minor Plaintiffs, for which she was later indicted. Plaintiffs brought suit under
For the following reasons, we AFFIRM the district court‘s order denying Wiegenstein‘s motion to dismiss Plaintiffs’
I. BACKGROUND
Shoemaker began working at Halls during the 2011 to 2012 school year. During her first year, Shoemaker was assigned to be a direct assistant to L.R., which meant that she was “responsible for every need of L.R. while at Halls Middle School.” R. 44 (Am. Compl. at ¶¶ 20-21) (Page ID #398). According to Plaintiffs, while Shoemaker was serving as L.R.‘s direct assistant, her parents, Robert and Kimberly Rosasco, began to notice that L.R. was exhibiting “new outbursts and aggressive behavior.” Id. at ¶ 21 (Page ID #398). Plaintiffs allege that the Rosascos made numerous complaints to the KCBOE, the administration, and the school‘s principal, Wiegenstein, and demanded that Shoemaker be replaced as L.R.‘s direct assistant. Id. at ¶ 22 (Page ID #398-99). They further allege that, in response to these complaints, Defendants failed to investigate or remove Shoemaker; and “school officials responded ... by affirmatively telling [the Rosascos] that they could ‘get worse.‘” Id. The Rosascos later noticed bruising on L.R.‘s knees and discovered that L.R. had been kept in a room alone for hours and was not permitted for a whole day to use the restroom. Id. at ¶ 23 (Page ID #399-400). After the Rosascos threatened legal
One year later, at the start of the 2013 to 2014 school year, Shoemaker was “promoted” to a teacher‘s assistant position. Id. Shoemaker had worked as a teacher‘s assistant once before at her prior job at Brickey Elementary School (“Brickey“), where she received negative performance evaluations. Id. at ¶ 19 (Page ID #397). An April 2011 performance evaluation reprimanded Shoemaker and stated that she “needed imprоvement” in “maintaining self-control in frustrating and difficult situations; following directions of supervisors; and, providing a positive rapport with the children, teachers and parents.” Id. “Shoemaker also received an ‘unsatisfactory’ evaluation regarding her compliance with school and department regulations.” Id. Brickey, like Halls, is overseen by the KCBOE, and Plaintiffs assert that “these deficient evaluation scores, as well as the grounds on which they were based, were either (a) already known by [KCBOE], and/or (b) placed in Defendant Shoemaker‘s personnel file” when she transferred to Halls. Id.
Despite these negаtive evaluations, Shoemaker was assigned to be a teacher‘s assistant in Halls‘s Comprehensive Developmental Classroom—Alternative Learning (“CDC-A“) classroom. Id. at ¶ 23 (Page ID #399). The CDC-A classroom was intended for special-needs students and was overseen by one special-education teacher and two teacher‘s assistants, including Shoemaker. Id. at ¶ 24 (Page ID #400). Shoemaker, who was assigned to a regular classroom at Brickey, had never worked as a teacher‘s assistant in a special-needs classroom before. Id. at ¶ 19 (Page ID #397). According to Plaintiffs, Shoemaker was not trained and lacked the knowledge necessary to handle a class of special-needs students. Id. at ¶ 23 (Page ID #399-400). Specifically, “Shoemaker did not have a four-year degree, a teacher‘s license, or sufficient relevant experience and training to give her the requisite knowledge, patience, skills and abilities to appropriately deal with special needs children.” Id. at ¶ 18 (Page ID #396-97). According to Plaintiffs, this transfer was made despite Defendants’ knowledge of Shoemaker‘s prior misconduct, not only with regard to L.R., but also with regard to her past performance at Brickey. Id. at ¶ 23 (Page ID #399-400).
W.H. and L.R. were both placed in the CDC-A classroom with Shoemaker for the 2013 to 2014 school year. Id. at ¶ 24 (Page ID #400). W.H., who was thirteen when the Amended Complaint was filed, is wheelchair-bound and has severe physical and mental disabilities that render her unable to speak. Id. at ¶ 14 (Page ID #394). She is classified by KCBOE as being intellectually disabled. Id. L.R. similarly has physical and mental disabilities. She is classified by KCBOE as being “intellectually disabled in certain areas of the educational spectrum, yet gifted in others.” Id. at ¶ 15 (Page ID #394-95). Whereas W.H. was assigned to the CDC-A classroom full-time, L.R. was assigned there “as both a student for a portion of her learning and as a peer mentor due to her qualitiеs in the areas of which she was classified as gifted.” Id. at ¶¶ 14-15 (Page ID #394-95). L.R. also attended some classes in regular classroom settings. Id.
Near the end of the 2013 to 2014 school year, the special-education teacher assigned to CDC-A, referred to by both parties as the “Teacher of the Year,” announced her intent to resign at the end of the school year. Id. at ¶ 25 (Page ID #400-01). According to Plaintiffs, the
Plaintiffs argue that after the Tеacher of the Year resigned, Wiegenstein continued to receive numerous complaints related to Shoemaker‘s physical abuse, but he did not investigate or report these concerns to the proper authorities. Id. During the 2014 to 2015 school year, several student-peer mentors assigned to the CDC-A classroom witnessed Shoemaker‘s abusive behavior toward the special-needs students and reported their concerns to school officials, including Wiegenstein. Id. at ¶ 27 (Page ID #402-03). The parents of some of these student-peer mentors also reported these claims of abuse. Id. at ¶ 28 (Page ID #403). Plaintiffs argue that Defendants failed to investigate, report, or respond to any of these allegations.
On one occasion, Virginia Howard, W.H.‘s mother, witnessed Shoemaker “forcefully grab [W.H.‘s] face and shake it while screaming at her.” Id. at ¶ 30 (Page ID #404-05). Mrs. Howard “immediately informed” Wiegenstein of this incident. Id. The Howards also began to notice visible changes to W.H.‘s behavior shortly after the start of the 2014 to 2015 school year. Id. Plaintiffs believe that W.H. was mimicking Shoemaker‘s abusive and angry behavior. Id. Plaintiffs argue that Defendants did not take any action in response to complaints from the Howards about this abuse. Id.
On Septеmber 24, 2014, the Knox County Sheriff‘s Department contacted the Howards to inform them that the police had received a credible complaint regarding Shoemaker‘s abuse of children in the CDC-A classroom, including W.H. Id. at ¶ 32 (Page ID #405-06). The police, along with the Tennessee Department of Children‘s Services, launched an investigation. Id. On September 30, 2014, “Shoemaker was forced to resign.” Id. Plaintiffs state that Shoemaker was arrested and indicted for assault and battery and that, although the investigation is “ongoing, ... an admission of guilt was obtained.” Id. at ¶¶ 32, 36 (Page ID #405-06, 408).
With regard to the specific allegations of abuse against W.H. and L.R., Plaintiffs allege that:
Upon information and belief, these acts of physical and verbal abuse directly and specifically involving W.H. included, without limitation, the following: physically dragging children by their extremities in such a way that the children‘s
heads and/or bodies would strike objects, walls, and/or the ground; violently throwing or pushing children into corners and/or walls; throwing or pushing helpless children into chairs and/or other objects; physically grabbing the children‘s fingers, wrists, and joints and threatening to bend or twist them with the intent of causing fear and anxiety; actually squeezing and bending the children‘s fingers, wrists, and joints so as to cause pain, break bones, and elicit screams of pain from the children; violently grabbing a child‘s hair аnd using it to jerk and shake the child‘s head with the intent to inflict serious abusive pain; violently, physically, and in a painfully forceful manner, grabbing a child‘s chin and shaking the child‘s head while screaming at the child; physically standing on a child‘s feet and toes and then stomping on them; bending a child‘s foot, feet, and/or ankles in a deliberate and violent manner to inflict extreme pain and elicit screams; physically slinging a child from a chair to the floor; loudly screaming into a child‘s ear, demanding that the children strike and hit each other; and physically and verbally abusing children in the course of walking to, using, and leaving the restroom so as to prevent them from using the restroom properly and to cause anxiety and fear about using the restroom.
Upon information and belief, Defendant Shoemaker‘s physical and verbal abuse directly and specifically involving L.R. included, without limitation, the following: violent banging of L.R.‘s head and arms against cinder block walls because [Shoemaker] hated to change [L.R.‘s] clothes after urination; inhumanely placing L.R. in an approximately eight by eight (8 x 8) room with no windows (the equivalent of a jail-like cell) for hours to a full day with the inability to urinate based upon Defendant Shoemaker‘s heartless disgust with having to help the immobile L.R. urinate or change her clothing. Further, said inhumane physical and psychological abuse from Defendant Shoemaker caused the disabled L.R. to incur a significant amount of yeast and kidney infections due to Shoemaker‘s prohibition of L.R.‘s ability to urinate, physical, psychological flashbacks, nightmares, uncontrolled seizure-like behavior, increased physical eruption of her behavior due to her condition regarding “tone effect” due to Defendant Shoemaker‘s abusive temper and yelling, and loss of sleep. Defendant Shoemaker‘s abuse not only caused heinоusly serious physical harm and inhumane humiliation, but also caused anxiety and fear about the consequences of not being able to use the restroom. The combined effects from the inhumane treatment and abuse, has caused L.R. to be prescribed medication related to these abusive sadistic behavior committed by Defendant Shoemaker, and L.R. will need to continue taking this medication for her future wellbeing.
Id. at ¶¶ 33-34 (Page ID #406-07).
Plaintiffs filed three separate lawsuits in state court, alleging claims under
In response, Knox County, the KCBOE, and Wiegenstein each filеd motions to dismiss. R. 50 (Knox Cty. Mot. to Dismiss) (Page ID #562-99); R. 46 (KCBOE Mot. to Dismiss) (Page ID #440-57); R. 48 (Wiegenstein Mot. to Dismiss) (Page ID #538-60). The KCBOE also filed a motion to strike assertedly immaterial and impertinent allegations, and Knox County, Wiegenstein, and Shoemaker jointly filed a motion to strike redundant parties. R. 46 (KCBOE Mot. to Dismiss) (Page ID #440-57); R. 59 (Defs. Mot. to Strike) (Page ID #729-32). The district court granted Knox County‘s motion to dismiss as to the negligence-per-se, common-law-negligence, and punitive-damages claims, but denied the motion as to Plaintiffs’ § 1983 claim for municipal liability. R. 70 (Dist. Ct. Order at 2, 38) (Page ID #795, 831). The district court granted the KCBOE‘s motion to dismiss as to the negligence-per-se claim, but denied it as to all other claims and denied the KCBOE‘s motion to strike. Id. at 2, 19-20 (Page ID #795, 812-13). As to Wiegenstein‘s motion to dismiss, the district court held that Wiegenstein was not entitled to qualified immunity and denied his motion to dismiss Plaintiffs’ § 1983 claim. Id. at 48 (Page ID #841). Finally, the district court denied Defendants’ motion to strike redundant parties. Id. at 49 (Page ID #842). Wiegenstein then filed a timely notice of appeal. The only issue on appeal is whether Plaintiffs allege sufficient facts to demonstrate that Wiegenstein is not entitled to qualified immunity.
II. ANALYSIS
A. Standard of Review
“The district court‘s rejection of the state defendants’ qualified immunity defense at the pleading stage, posing a question of law, is reviewed de novo.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011) (citation omitted). We must tаke as true the non-conclusory allegations in the complaint, and determine if the complaint contains “sufficient factual matter” to support a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim is facially plausible when a plaintiff ‘pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‘” Coley v. Lucas Cty., 799 F.3d 530, 537 (6th Cir. 2015) (quoting Iqbal, 556 U.S. at 678). The allegations must be more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the allegations “must be enough to raise a right to relief above the speculative level.” Id.
B. Qualified Immunity
The doctrine of qualified immunity shields government officials from civil lia-
We conduct a two-step analysis to determine whether qualified immunity applies. Coley, 799 F.3d at 537. First, “viewing the facts in the light most favorable tо the plaintiff, we determine whether the allegations give rise to a constitutional violation.” Id. (citation omitted). Second, we must “assess whether the right was clearly established at the time of the incident.” Id. (citation omitted). Courts have discretion to decide which of the two steps to address first. Pearson, 555 U.S. at 236. The parties do not dispute that the right at issue here was clearly established. See Appellant‘s Br. at 19; see also Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987) (“It is well established that persons have a fourteenth amendment liberty interest in freedom from bodily injury.“). We must therefore assess whether the allegations sufficiently allege a claim that Wiegenstein caused the constitutional deprivation.
1. Deliberate Indifference
Plaintiffs argue that although Wiegenstein did not himself physically abuse the minor children, he is nonetheless liable as a supervisor for causing minor Plaintiffs W.H. and L.R. to be deprived of a federal right. Appellee‘s Br. at 14; see also Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016) (“[T]o establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.” (citation omitted)). It is well-established that “a mere failure to act will not suffice to establish supervisory liability,” and that a showing of “active unconstitutional behavior” is required. Peatross, 818 F.3d at 241 (citation omittеd). “However, ‘active’ behavior does not mean ‘active’ in the sense that the supervisor must have physically put his hands on the injured party or even physically been present at the time of the constitutional violation.” Id. at 242 (citation omitted). In order to bring a claim of supervisory liability against a school official, a plaintiff must show that the defendant‘s “failure to take adequate precautions amounted to deliberate indifference to the constitutional rights of students.” Doe v. Warren Consol. Schs., 93 Fed. Appx. 812, 818-19 (6th Cir. 2004) (citation omitted). This requires, at a minimum, a showing “that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Doe v. Claiborne Cty., 103 F.3d 495, 511 (6th Cir. 1996) (citation omitted).
The issue of deliberate indifference in this context is a question of proportionality. McCoy v. Bd. of Ed., Columbus City Schs., 515 Fed. Appx. 387, 391 (6th Cir. 2013). The court should first take into consideration the information available to the supervisor at the time, and whether the information available to the supervisor “showed a strong likelihood” that the defendant would engage in similar behavior in the future. Claiborne Cty., 103 F.3d at 513 (citation omitted). The likelihood of future harm may depend upon a showing that the supervisor “was confronted with a
Taking as true the allegations contained in the amended complaint, we conclude that Plaintiffs have alleged sufficient facts to demonstrate that Wiegenstein had actual knowledge of Shoemaker‘s abuse. Plaintiffs point to numerous examples where parents and students complained to Wiegenstein about specific incidents of abuse witnessed or otherwise discovered, not just a general fear of potential abuse. The complaint clearly states that during the 2011 to 2012 school year, the Rosascos made repeated complaints to Wiegenstein “including claims of verbal and physical abuse ... by Defendant Shoemaker” after they began to notice aggressive behavior in their daughter. R. 44 (Am. Compl. at ¶ 22) (Page ID #398). Moreover, the Rosascos allege that they threatened legal action after they discovered bruising on L.R.‘s knees and learned that, when Shoemaker was assigned as L.R.‘s direct assistant, she kept L.R. isolated in a room alone and did not allow her to use the restroom for an entire day. Id. at ¶ 23 (Page ID #399-400). These complaints clearly put Wiegenstein on notice that a constitutional deprivation was taking place as to L.R.
Wiegenstein was also put on notice of the abuse of W.H. when Mrs. Howard personally witnessed Shoemaker grab and shake W.H.‘s face1 and “immediately informed Defendant Wiegenstein of Defendant Shoemaker‘s continued and unjustified mistreatment and abuse of these children.” Id. at ¶ 30 (Page ID #404-05). Wiegenstein was again put on notice during the 2014 to 2015 school year, when student-peer mentors and their parents allegedly “inform[ed] school officials, including Defendant Wiegenstein, of ... problems associated with Defendant Shoemaker‘s mistreatment and/or abuse of the special needs children including, specifically, the minor Plaintiffs,” which the student-peer mentors personally witnessed while mentoring students in the CDC-A classroom. Id. at ¶¶ 27-28 (Page ID #402-03). Plaintiffs have clearly alleged sufficient facts to demonstrate that Wiegenstein had actual knowledge of specific instances of Shoemaker‘s abuse.
We must next consider whether, given Wiegenstein‘s actual knowledge of Shoemaker‘s abuse, his response rises to the level of deliberate indifference. On the basis of the complaint, it is clear that his actions, and more often, inaction, constituted deliberate indifference. Although knowing acquiescence implies more than “sloppy, reckless, or neglectful” execution of duties, Claiborne Cty., 103 F.3d at 513, “failure to take any disciplinary action despite reports of reрeated [abuse] rises to the level of deliberate indifference,” McCoy, 515 Fed. Appx. at 391; see also Peatross, 818 F.3d at 243 (holding that plaintiffs raised a claim of deliberate indifference where the complaint alleged that defendant, despite acknowledging a problem with police operations, nonetheless failed to investigate allegations of excessive force and attempted to cover-up incidents by exonerating officers); Davis v. Monroe Cty. Bd. of Ed., 526 U.S. 629, 654 (1999) (holding that a complaint alleging that a school board “made no effort whatsoever either to investigate or to put an end” to sexual harassment by a classmate “suggests that рetitioner may be able to show ... deliberate indifference on the part of the Board“). Moreover, a defendant may be more likely to be considered deliberately indifferent if he took affirmative action that heightened the risk of harm to the plaintiff. See Warren, 93 Fed. Appx. at 819 (holding that qualified immunity did not apply where defendant had actual knowledge of a teacher‘s sexual-abuse history but chose to approve his transfer to an elementary school where plaintiff was abused).
The complaint alleges that Wiegenstein made no efforts to investigate, report, train, or terminate Shoemaker upon receipt of numerous complaints from students, parents, and teachers. R. 44 (Am. Compl. at ¶¶ 22-23, 26-31) (Page ID #398-405). This alone is sufficient to establish a claim for deliberate indifference. The complaint also alleges that Wiegenstein, despite knowledge of Shoemaker‘s abuse, took affirmative actions to heighten the risk of future harm to children. After receiving complaints from the Rosascos of verbal and physical abuse of their child and of specific discoveries including bruising on L.R.‘s knees, Wiegenstein replaced Shoemaker as L.R.‘s direct assistant. Id. at ¶ 23 (Page ID #399-400). However, Wiegenstein later placed Shoemaker in the CDC-A classroom, where L.R. was placed, along with numerous other special-needs children. Id. Given his earlier acknowledgement that Shoemaker was ill-suited to care for L.R. as a direct assistant, Wiegen-
Wiegenstein has failed to identify a single cаse where we held that a school supervisor who took no action in response to complaints of a constitutional violation was entitled to qualified immunity. In Claiborne County, 103 F.3d at 513, we explicitly held that three supervisor-defendants carried out their statutory duty to supervise and report acts of misconduct, including by reporting allegations of sexual abuse to the appropriate child-welfare agency, removing the accused teacher from student contact during the pendency of the investigation, supervising later contact with students, and determining that the teacher in question had been “exonerаted” of all previous charges. Id. In Doe v. City of Roseville, 296 F.3d 431, 441 (6th Cir. 2002), we found that one of the supervisors filed a report with the child-welfare agency and believed that the abuse might be occurring at home, whereas the other supervisor did not become aware of a teacher‘s history of sexual misconduct until after the police launched an investigation. Roseville, 296 F.3d at 441. The response of these officials is clearly distinguishable from that of Wiegenstein, who took no action despite numerous consistent complaints from students, parents, and teachers.
2. Causal Connection
Wiegenstein also contends that the claims against him should be dismissed because he believes that there is no causal connection between his failure to train and supervise and Shoemaker‘s criminal activity.2 Appellant‘s Br. at 33. This is clearly incorrect. The complaint states that Wiegenstein was “in a position of supervision and control over teacher‘s assistan[ts] at Halls Middle School, including Defendant Shoemaker.” R. 44 (Am. Compl. at ¶ 10) (Page ID #393). By failing adequately to supervise and, in particular, to investigate allegations of abuse against Shoemaker and by placing Shoemaker in a situation that heightened the likelihood that Shoemaker‘s widespread pattеrn of abuse would continue, Wiegenstein made it possible for Shoemaker continually to abuse the minor Plaintiffs.
III. CONCLUSION
Based on the foregoing, we AFFIRM the district court‘s order denying Wiegenstein‘s motion to dismiss Plaintiffs’