Jane Doe a v. SPECIAL SCH. DIST. OF ST. LOUIS CTY.Jane Doe a v. SPECIAL SCH. DIST. OF ST. LOUIS CTY.
NANGLE, Chief Judge.
I. Summary Judgment Standard.
Under
In determining whether a genuine issue of material fact exists, the Court views the evidence presented through the “prism” of the burden of proof imposed upon the parties by the underlying substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Recently, the Supreme Court noted that: “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action‘.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (quoting
II. Liability of the Individual S.S.D. Officials.
Plaintiffs have sued the individual S.S.D. defendants in their individual as well as their official capacities. A
An action against officials in their individual capacities seeks to impose personal liability upon the officials for their own culpable action or inaction. Clay, 815 F.2d at 1170. To impose personal liability upon an official, the plaintiff must show that the official was personally involved, in some way, in the violation of the plaintiff‘s constitutional rights. An official may be personally involved by directly participating in the constitutional violations, by creating a policy or custom of condoning the violations, by failing to remedy known violations, or by training or supervising subordinates in a grossly negligent or reckless manner. See Id.; Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir.1985); Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). See also City of Springfield, Mass. v. Kibbe, ___ U.S. ___, 107 S.Ct. 1114, 1121, 94 L.Ed.2d 293 (1987) (O‘Connor, J., dissenting).
When an official‘s personal liability is premised upon failure to remedy known constitutional violations or failure to adequately supervise or train subordinates, the plaintiff must show that:
1. The official received “notice of a pattern of unconstitutional acts” committed by subordinates;
2. The official “demonstrated deliberate indifference [to] or tacit authorization of the offensive acts“;
3. The official failed to take sufficient “remedial” action; and
4. The official‘s failure proximately caused injury to plaintiff.
See Wilson v. City of North Little Rock, 801 F.2d 316, 322 (8th Cir.1986); see also Clay, 815 F.2d at 1170; Patzner, 779 F.2d at 1367. Mere negligence in supervision of subordinates is not sufficient to establish
Plaintiffs’ first amended complaint alleges that the individual SSD officials “failed to adequately investigate the complaints” regarding defendant Cerny‘s misconduct and “failed to reasonably respond to the pervasive risk of harm” to the plaintiffs. Plaintiffs do not allege that any of the S.S.D. officials directly participated in or observed the alleged violation of the plaintiffs’ constitutional rights, instead, plaintiffs base the individual S.S.D. defendants’ liability upon their inaction. Therefore,
According to plaintiffs’ evidence, defendant Scarnato received a single complaint from a parent that on one occasion defendant Cerny cursed at her and called her names in front of the children on the bus and that her son told her that Cerny was stopping the bus on the side of the road where there was no bus stop. (Plaintiffs’ Compliance Report filed August 28, 1987, p. 8). Defendant Scarnato also may have received information from another S.S.D. official that defendant Cerny kissed a child on the bus.3 Defendant Campbell received only two complaints regarding Cerny‘s conduct: defendant Marchlewski told defendant Campbell that Cerny kissed a boy and defendant Marchlewski or defendant Hill told defendant Campbell that Cerny used foul language on the bus. (Plaintiffs’ Compliance Report filed August 28, 1987, pp. 5, 6, 9). The Court concludes that on the basis of the isolated incidents reported to defendants Scarnato and Campbell, a rational trier of fact could not find that these defendants had “notice of a pattern of unconstitutional acts” and were deliberately indifferent to or tacitly authorized the alleged physical and sexual abuse of plaintiffs. Wilson, 801 F.2d at 322.
Defendants Marchlewski and Hill allegedly received complaints that defendant Cerny used profanity on the bus, kissed a boy on the bus, pushed plaintiff John Doe “M” down the bus steps, and pulled his hair.4 (Plaintiffs’ Compliance Report filed August 28, 1987, pp. 5, 7, 10, 11). Defendant Marchlewski also received complaints regarding Cerny‘s failure to follow a child‘s behavior modification program and Cerny‘s failure to hand out a bus pass, and a complaint that Cerny kissed, kicked and gave John Doe “G” a “snuggle.”5 (Plaintiffs’ Compliance Report filed August 28, 1987, pp. 7, 9). Defendant Hill received a complaint that a child had not been picked up at his bus stop and that Cerny physically restrained John Doe “D” to break up a fight. (Plaintiffs’ Compliance Report filed August 28, 1987, pp. 7, 12).
Many of the complaints received by defendants Marchlewski and Hill, e.g. failure to give out a bus pass, not picking up a child at a bus stop, restraining a child to break up a fight, are similar to the kinds of complaints routinely received regarding a bus driver‘s interaction with children. While some of the reported incidents involved offensive actions which well may rise to common-law torts, these actions do not rise to constitutional violations under the circumstances of this case. Thus, the complaints received by defendants Marchlewski and Hill do not constitute “notice of a pattern of unconstitutional actions.” Moreover, any failure on the part of defendants Marchlewski and Hill to act upon these complaints does not amount to deliberate indifference to or tacit authorization of the alleged physical and sexual abuse of the plaintiffs.
Of the individual S.S.D. defendants, defendant Stotler received the most notice of defendant Cerny‘s alleged misconduct. According to plaintiffs’ evidence, defendant
The present case is unlike police brutality or sexual harassment cases in which supervisory officials, who have received numerous complaints regarding the precise unconstitutional conduct, tolerate or condone the practice and persistently fail to remedy a known and continuing pattern of unconstitutional conduct. See e.g., Harris v. City of Pagedale, 821 F.2d 499 (8th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987) (pattern of prior sexual misconduct by police officers and numerous citizen complaints regarding police sexual misconduct); Herrera v. Valentine, 653 F.2d 1220, 1225 (8th Cir.1981) (pattern of racially-motivated police brutality against American Indians and numerous complaints regarding racist conduct); Bohen v. City of East Chicago, Ind., 799 F.2d 1180 (7th Cir.1986) (repeated and pervasive sexual harassment of female employees by male supervisors and male employees, frequent complaints through official channels, and open acknowledgement of the sexually oppressive working conditions by high-ranking officials). Nothing in the record indicates that the individual S.S.D. defendants tolerated or condoned Cerny‘s alleged violation of plaintiffs’ constitutional rights. To the contrary, they responded to the complaints received by questioning Cerny, by counseling Cerny about physical interventions with children, and by riding on Cerny‘s bus to observe his behavior. (S.S.D. Defendants’ Response to Plaintiffs’ Compliance Report filed September 9, 1987, p. 5; Plaintiffs’ Compliance Report filed August 28, 1987, pp. 5, 11).
In summary, the Court concludes that a rational trier of fact could not find that the individual S.S.D. defendants had notice of a pattern of unconstitutional acts and displayed deliberate indifference to or tacitly authorized the alleged unconstitutional conduct. Accordingly, the individual S.S.D. defendants are entitled to summary judgment on plaintiffs’
III. Liability of the S.S.D.
A governmental entity cannot be held vicariously liable for unconstitutional acts of its employees on a theory of respondent superior, but it can be held liable under
Only decisions made by officials with “final policymaking authority” are attributable to a governmental entity. Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300; City of St. Louis v. Praprotnik, ___ U.S. ___, ___, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 56 U.S.L.W. 4201, 4204, (1988). Whether a particular official has “final policymaking authority” is determined by the Court by reference to state law. Praprotnik, ___ U.S. at ___ - ___, 108 S.Ct. at 924-26. For the governmental entity to be held liable under
Under Missouri law, the Special School District Board of Education is responsible for establishing and operating educational programs for handicapped children and for providing transportation and establishing all necessary rules for the transportation of handicapped children.
It is clear that under state law and the regulations promulgated by the S.S.D. Board pursuant to state law that no individual Board member has the final authority to establish S.S.D. policy, and S.S.D. policy can only be formulated by the Board functioning as a legislative body. Although no individual S.S.D. Board member has final authority to establish S.S.D. policy, defendant Scarnato, as superintendent and as the official responsible for implementing Board policy, may be “high enough” in the S.S.D. structure that his “actions can be said to represent a decision” of the S.S.D. itself. See Praprotnik, at ___, 108 S.Ct. at 925.
There is, of course, no official policy formulated by the S.S.D. Board of Education which authorizes or condones physical or sexual abuse of handicapped children. There also is no evidence that defendant Scarnato deliberately chose to follow a course of action of ignoring complaints regarding physical or sexual abuse of handicapped children. See Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300; Tuttle, 471 U.S. at 823, 105 S.Ct. at 2436.
The record also does not support the existence of a customary practice of deliberate indifference to the violation of handicapped children‘s constitutional rights. For the S.S.D. to be held liable on the basis of custom, there must exist a pattern of “persistent and widespread” unconstitutional practices which have become so “permanent and well settled” as to have the force and effect of law. See Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Because the Court has concluded that the individual S.S.D. defendants did not have “notice of a pattern of unconstitutional acts” and did not display deliberate indifference to or tacitly authorize the violation of plaintiffs’ constitutional rights, a custom of deliberate indifference to or tacit authorization of the alleged unconstitutional conduct cannot be attributed to the S.S.D.
Independent evidence of a policy or custom must exist, apart from any misconduct of an employee, to hold a governmental entity liable under
For the foregoing reasons, the Court concludes that the S.S.D. did not have a policy or custom of ignoring complaints of physical or sexual abuse of handicapped children, and therefore, the S.S.D. is entitled to summary judgment on plaintiffs’
IV. Liability of Defendant Cerny.
A. Defendant Cerny‘s Alleged Acts of Physical and Sexual Abuse.
Defendant Cerny contends that he is entitled to summary judgment because none of the acts alleged in plaintiffs’ complaint against him rise to the level of a constitutional violation and the alleged acts constitute, at most, common law torts. The Court previously addressed and rejected this argument in denying Cerny‘s motion to dismiss. See Jane Doe “A” v. Special School District of St. Louis County, 637 F.Supp. 1138, 1143-45 (E.D.Mo.1986). Thus, the Court will only briefly address the argument here.
To recover under
Some of the acts allegedly committed by Cerny include: touching, grabbing, or pinching the plaintiffs’ genitals and buttocks, pulling their pants down and spanking them, striking or sitting on them, threatening them and exposing himself and masturbating in front of them. The Court cannot find, as a matter of law, that these acts do not rise to violations of plaintiffs’ substantive due process rights. As alleged, these acts constitute an intrusion upon the plaintiffs’ bodily security and personal privacy sufficient to “shock the conscience” of the jury. Davis v. Forrest, 768 F.2d 257, 258 (8th Cir.1985).
B. Plaintiffs Who “Witnessed” Defendant Cerny‘s Acts.
Defendant Cerny contends that certain plaintiffs who merely “witnessed” his alleged improper acts or who were touched in non-sexual ways do not have a
Defendant is correct in stating that individuals may not recover under
Defendant Cerny contends that John Does K and F who merely “witnessed” the alleged violation of other children‘s constitutional rights and John Does H, J and M who witnessed the acts and were touched in non-sexual ways, fail to state a
It is clear to the Court that, although John Does K, F, H, J, and M may have not been directly subject to defendant Cerny‘s alleged acts of sexual abuse, their emotional distress may have arisen from an actual risk of physical harm. If the allegations against Cerny are true, these plaintiffs were more than mere witnesses to the violation of other childrens’ civil rights. They observed acts and heard threats against other children which put them in fear of intrusions upon their own bodily security and personal privacy. They were in a position in which they could have been the next targets of the alleged physical and sexual abuse. Thus, John Does K, F, H, J, and M‘s own liberty interest in personal security and emotional well-being were implicated by Cerny‘s alleged misconduct.
C. Plaintiffs on Defendant Cerny‘s Bus.
Finally, defendant Cerny contends that he is entitled to summary judgment with respect to certain plaintiffs who never rode on or rode for only a brief period of time on Cerny‘s bus. According to affidavits submitted by the S.S.D. defendants and completed by S.S.D. bus drivers, transportation aides, and the transportation supervisor, John Doe C did not ride on Cerny‘s bus during the 1984-85 school year and John Does E, I, and K rode on Cerny‘s bus for only the first four days of the 1984-85 school year while a transportation aide was on the bus.
John Doe C claims that he was on Cerny‘s bus during the 1984-85 school year and he describes, in his deposition, various acts of physical and sexual abuse that he witnessed Cerny commit on the bus. (John Doe C Deposition, pp. 14-18). John Doe K testified at his deposition that he rode on Cerny‘s bus during 1984-85. (John Doe K Deposition, p. 15). The S.S.D. defendants admit that John Does E, I, and K were transported on Cerny‘s bus during the 1983-84 school year. (Defendant S.S.D. Answers to Plaintiffs’ Supplemental Interrogatory No. 1(b) filed September 23, 1987). Because a factual dispute exists as to whether John Does C and K rode on Cerny‘s bus during 1984-1985 and because defendants admit that John Does E, I, and K rode on Cerny‘s bus during 1983-84, summary judgment on this issue is inappropriate. See Hillebrand v. M-Tron Industries, Inc., 827 F.2d 363 (8th Cir.1987).
For the foregoing reasons, defendant Cerny‘s motion for summary judgment is denied.
ORDER
Pursuant to the memorandum filed herein this day,
IT IS HEREBY ORDERED that the “Motion for Summary Judgment” of defendant Special School District and of the individual Special School District defendants be and is granted.
IT IS FURTHER ORDERED that the S.S.D. defendants’ “Joint Motion for Partial Summary Judgment” be and is denied as moot.
IT IS FURTHER ORDERED that defendant David Cerny‘s motion for summary judgment be and is denied.
IT IS FURTHER ORDERED that the S.S.D. defendants’ motion to reject the ex parte statement of Madeline Wendland be and is denied.
IT IS FURTHER ORDERED that summary judgment be and is entered in favor of the defendant Special School District and in favor of the individual Special School
ON MOTION FOR RECONSIDERATION
IT IS HEREBY ORDERED that plaintiffs’ motion for reconsideration of this Court‘s order granting summary judgment in favor of the Special School District defendants be and is denied.
In support of their motion for reconsideration, plaintiffs argue that the Court overlooked “significant examples” of prior notice of misconduct received by the Special School District (S.S.D.) defendants. The examples of prior notice cited by plaintiffs involve alleged sexual encounters between defendant Cerny and other adults. The Court did not overlook these incidents, but rather found that these alleged incidents were irrelevant and immaterial to the issue of whether the S.S.D. defendants had notice of defendant Cerny‘s alleged physical and sexual abuse of the handicapped children.
Plaintiffs also seek to supplement the record with the affidavit of Elizabeth Decker, a former member of the S.S.D. Board of Education. Recently, the Eighth Circuit described the proper use of the motion for reconsideration as follows:
Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence. Such motions cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion.
Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988) (quoting Rothwell v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.), as amended, 835 F.2d 710 (7th Cir.1987).
Plaintiffs do not contend that they were unable to present the information in the affidavit prior to the entry of the summary judgment. In fact, when plaintiffs’ counsel filed the motion for reconsideration on April 4, 1988, he indicated that the “information was available” to him “last fall.” The parties were permitted to file numerous memoranda and supplementary materials during the six months that the S.S.D. defendants’ motion for summary judgment was pending before this Court. The Court also granted plaintiffs leave to file the ex parte statement of Madeline Wendland, another former member of the S.S.D. Board of Education. Plaintiffs had ample opportunity to file the affidavit of Elizabeth Decker before the summary judgment decision was issued. Therefore, the plaintiffs’ motion to reconsider the Court‘s judgment is denied.