Lead Opinion
This civil rights action, filed pursuant to 42 U.S.C. § 1983, arises from a poolside disciplinary encounter between teacher Richard Osbeck and student Charles Metz-ger at Log College Junior High School in Bucks County, Pennsylvania, from which Metzger emerged with a broken nose and other injuries requiring hospitalization. The district court granted a motion for summary judgment in which Osbeck, principal Harry L. Clark, supervisor Ronald Y. White, the Centennial School District, the Centennial School Board, and its members all joined and from which Metzger and his parents appeal. Upon plenary review of defendants’ motion, we find that there is a genuine issue of material fact regarding Osbeck’s intentions when disciplining Metz-ger. Accordingly, we will reverse the district court’s order of June 26, 1987 entered on the motion to the extent that it dismissed the Metzgers’ substantive due process claim and pendent state claims against Osbeck. We will, however, otherwise affirm the order.
In reviewing a grant of summary judgment, we apply the same test used by the district court and thus unless we find that no genuine issue as to any material fact remains for trial and that the moving parties are entitled to summary judgment as a matter of law, we must reverse. Tigg Corp. v. Dow Corning Corp.,
We agree with the district judge’s statement in his memorandum opinion granting defendants’ motion for summary judgment that a reasonable jury could find the following facts:
Metzger was enrolled in a swimming class taught by defendant Richard Os-beck (‘Osbeck’), the chairman of the school’s physical education department. Metzger was failing swimming for failure to participate in class, but had not been a source of disciplinary problems for Osbeck. January 28, 1983 was the last day of the marking period, so Os-beck used class time for a recreational swim. Metzger had a written excuse from class that day: he recalls that he was suffering from the flu and had a swollen leg. During class, Metzger traded baseball cards with several fellow students on the pool deck.
Several feet away, Osbeck stood talking to a student teacher. Osbeck overheard Metzger using inappropriate language in the course of a conversation with a female student about baseball cards. He walked to where Metzger was standing, and, standing behind him, placed his arms around Metzger’s neck and shoulder area. Holding Metzger in that position, Osbeck quietly asked him, ‘Was that you using foul language?,’ and, when there was no response, said ‘That kind of language is unacceptable in this class. Do you understand me?’ In the course of the questioning, Osbeck’s arm moved slightly, upward, from Metz-ger’s Adam’s apple to under his chin; at some point, Metzger felt pressure on the underneath portion of the chin and had to stand up on his toes. Osbeck then released Metzger, intending to turn him around. Instead, Metzger, who had lost consciousness at some point, fell face down onto the pool deck.
As a consequence of his fall, Metzger suffered lacerations to his lower lip, a broken
The district judge granted Osbeck summary judgment as he concluded that Metz-ger had suffered no due process violations because a jury in the circumstances of the case could not infer that Osbeck intended to injure him or acted in reckless disregard of a risk of which he should have been aware. The other defendants were granted summary judgment as there was no school policy authorizing the conduct of which plaintiffs complained, there was no legal or factual basis for vicarious liability of the supervisors, and there was no showing that Osbeck had received inadequate training. See Monell v. Department of Social Services,
We have concluded that we cannot agree with the district judge to the extent he found that the restraint employed by Osbeck “in the circumstances in which it was employed, does not permit the inference that Osbeck intended to injure Metzger or recklessly disregarded a risk of injury of which he should reasonably have been aware.”
In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.
Even if physical reinforcement of a teacher’s verbal admonitions is pedagogically appropriate and condoned by school disciplinary policy, we believe a reasonable jury could find that the restraints employed by Osbeck, if responsible for the student’s loss of consciousness, exceeded the degree of force needed to correct Metzger’s alleged breach of discipline and that the substantial injuries sustained by Metzger served no legitimate disciplinary purpose. If the jury is persuaded that Osbeck employed those restraints with the intent to cause harm, Osbeck will be subject to liability for crossing the “constitutional line”
In reaching this conclusion we note that it is undisputed that Osbeck intentionally placed his arms around Metzger’s neck and shoulders. While we recognize that Os-beck disclaims any ill-will toward Metzger and that the circumstances of the encounter suggest he was motivated by a legitimate disciplinary desire to admonish, not injure, the student, we cannot say that a reasonable jury could not believe that Os-beck intended the consequences of his act or believed them to be a substantially certain result of it. Thus we cannot deprive plaintiffs of an opportunity to have a jury resolve the issue of Osbeck’s intent in their favor. See Chipollini v. Spencer Gifts, Inc.,
In this regard we observe that a jury might reasonably conclude that in view of Osbeck’s position as a physical education instructor and wrestling coach, he was aware of the inherent risks of restraining Metzger. If it did, it could discredit Os-beck’s disclaimer of punitive intent and could find that he intended to cause Metz-ger harm or believed harm was substantially certain to attend his actions. In short, we cannot permit a summary judgment to be granted to a defendant who, by an intentional act, may have caused serious harm simply because he says he did not intend the harm. Thus, the evidence at this stage of the proceedings is not so one-sided that Osbeck must prevail as a matter of law. Anderson,
In view of the aforesaid, we will reverse the dismissal of the Metzgers’ substantive due process claim and pendent state claims against Osbeck and remand the matter for further proceedings consistent with this opinion. We will, however, affirm the dismissal of all other constitutionally based claims against Osbeck and all claims against the other defendants for the reasons set forth in the district court’s opinion.
Notes
. Although the Supreme Court has had "no occasion to consider whether something less than intentional conduct, such as recklessness or ‘gross negligence,' is enough to trigger the protections of the Due Process Clause,” Daniels v. Williams,
. In Justice v. Dennis,
. The other constitutional claims against Osbeck which we do not reinstate are based on a denial of procedural due process, infringement of Metzger’s rights to free speech and free expression and rights under the Ninth Amendment. As noted by the district court, despite the broad sweep of their complaint, plaintiffs rely exclusively on theories of substantive and procedural due process to support their contention that Osbeck’s use of excessive force violated Metz-ger’s constitutional rights. We see no basis for the procedural due process claim here. See Ingraham v. Wright,
Concurrence in Part
concurring and dissenting.
Plaintiff alleges an infringement of rights under the substantive due process requirements of the Fourteenth Amendment. He has, however, not produced enough evidence to demonstrate a constitutional violation.
Evidence giving rise to a common law tort will not necessarily establish a claim under section 1983. The mere fact that a state official has committed a tort will not suffice to support a cause of action for constitutional harm. “Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.” Daniels v. Williams,
A teacher’s constitutional liability is not determined by what is “pedagogically appropriate and condoned by school disciplinary policy,” as the majority implies. Those considerations may be relevant to the state tort action but not to the substantive due process claim. Constitutional standards do not vary from school district to school district nor do they depend on the educational philosophy of each individual school administration.
I begin with the proposition that there is a substantive due process entitlement to personal integrity which the state may infringe only in limited circumstances. Youngberg v. Romeo,
The majority here apparently adopts the test set out in Hall. There, the court proposed the following inquiry: whether the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that the punishment amounted to a brutal and inhumane abuse of official power literally shocking to the conscience. Id. at 613. See also Johnson v. Glick,
In my view, however, it is the intent to use excessive force — not the extent of injury — which is dispositive of the constitutional claim. The extent of injury at times may reflect the amount of force used or even suggest malice on the part of the state official. A savage beating, for example, may result in injuries that directly relate to the number and force of the blows. No such correlation exists here.
Nor is the intent to cause physical contact a controlling element. A teacher who slaps an unruly child to enforce obedience in a classroom obviously commits a volitional act with intent to inflict pain. Those facts, however, do not establish a constitutional violation; they do not demonstrate the use of excessive force — the hallmark of abuse of governmental position.
On the other hand, if the teacher hits a small child so hard as to knock her down a flight of steps with resulting serious injury, the intent to strike the pupil again is present. The evidence of intent to use excessive force could be perceived by the predictably serious injury resulting from the blow and the child’s position atop the staircase.
Other examples demonstrate the nuances of the problem. A teacher aims a light slap at a student’s shoulder, but the pupil moves suddenly, deflecting the teacher’s hand. As a consequence, the teacher’s ring strikes the child’s eye, resulting in a tragic injury. Or perhaps the teacher does no more than gently shove a disobedient child with a hidden impairment and causes an unforeseeable serious injury.
These contrasting situations illustrate the principle this court expounded in Rhodes v. Robinson,
The focus on abuse of power is a prime distinction between constitutional violations and routine torts. That concern counsels caution in relying on extent of injury to determine when conduct rises to the level of a constitutional violation. It is true that tortfeasors must take a victim as they find him. And it is also true that it is no defense against unintended damages that the act would not have caused as serious an injury to the average person.
By contrast, it must be conceded in this case that the teacher could use physical force, and therefore the initial physical conduct was lawful. The defendant’s act of pushing the pupil’s chin upward, alone, is not likely to cause injury or even pain. At most one would expect momentary discomfort, which in itself would not present an unconstitutional method of emphasizing the correctional message to a student deserving of a strong admonition.
Nothing in the record, as the district judge and I read it, would allow a reasonable jury to conclude that the defendant’s actions were meant to cause any injury, let alone one of the type that occurred. The injuries were unexpected and unintended. Plaintiff has failed to produce evidence which would justify any inference to the contrary.
This case is nothing but a routine tort matter which properly should be decided by a state court. In devoting time and effort to litigation of this nature, federal courts deprive parties with cases raising federal questions of the attention they deserve. In my view, this case has gone far enough. I would affirm the entry of summary judgment in favor of Osbeck as well as the other defendants.
I also must disagree with the majority’s footnote that this case can be sent to the jury on a theory of “gross negligence.” In cases of this nature, the use of “gross” as opposed to “simple” negligence will not serve to overcome the distinction between an ordinary tort and a constitutional violation. As Chief Judge Gibbons pointed out in his dissent in Davidson v. O’Lone,
Nor would an instruction on gross negligence be consistent with the charge given in the school discipline trial in Hall and repeated in Justice v. Dennis,
I suggest that the term “gross negligence” only multiplies the complexities of distinguishing between common law tort and constitutional violation. Although the Supreme Court reserved deciding whether “something less than intentional conduct, such as recklessness or ‘gross negligence’ will trigger the substantive protections of the Due Process Clause,” Daniels v. Williams,
I dissent.
. The criminal law has a parallel. A person engaged in unlawful activity of a minor degree may become guilty of a major crime if his victim is in poor physical condition. A victim of a purse snatching who has a heart attack attributable to the incident may subject the perpetrator to homicide charges.