Opinion
Civil Action No. 3:00CV563.
September 27, 2001
MEMORANDUM OPINION
This matter is before the Court by consent of the parties ( 28 U.S.C. § 636(c)(1)) on the Defendants' Motions to Dismiss and for Summary Judgment pursuant to Fed.R.Civ.P. 12(b)(6) and 56 as to all pending claims. Upon Plaintiffs' request, the Court previously dismissed the claim of "Malicious Prosecution" and the pendent state claims set forth in Section VII of the First Amended Complaint with the exception of the allegation of gross negligence. (Pls.' Mem. in Opp'n to Defs.' Mots. to Dismiss and for Summ. J., n. 51 at 11-12 (Pls.' Mem.); Order, Sept. 12, 2001). The remaining claims by the Plaintiff Terry Pollard (Mrs. Pollard) and Plaintiff Melanie Pollard (Melanie) seek compensatory and punitive damages as well as attorney's fees and costs pursuant to 42 U.S.C. § 1983 and 1988 against the Defendant Glenda Leabough (Leabough) for alleged violation of what is asserted to be Mrs. Pollard's constitutional right to direct and control the education of her daughter, Melanie. The Plaintiffs alternatively assert that the Defendant Leabough was grossly negligent and acted vindictively so as to also justify recovery. In addition, the Plaintiffs assert that the Superintendent of the Goochland County Public Schools, Warren A. Stewart (Stewart), is subject to supervisory liability for allowing Defendant Leabough's violative actions to occur. Last, the Plaintiffs claim that Stewart and the Defendant School Board are liable pursuant to a theory of municipal liability because of an established policy and custom that pennitted the occurrence of the Defendant Leabough's actions. The Court treats Defendants' motions as a motion for summary judgment because matters outside the pleadings have been offered and not excluded by the Court. Fed.R.Civ.P. 12(b)(6). For the reasons set forth herein, it is proper and just that Defendants' Motion for Summary Judgment be GRANTED in its entirety.
Standard of Review
Summary judgment is only to be granted when there is no genuine dispute as to any issue of material fact when all justifiable inferences are drawn in favor of the non-moving party and the movant is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, unsupported conclusory allegations by the non-moving party are not sufficient to create a genuine dispute of material fact so as to withstand the granting of relief. Celotex Corp. v. Catrett, 477 U.S. at 327 (White, J., concurring). In essence, the Court must decide if the evidence when viewed in the light most favorable to the non-moving party "presents a sufficient disagreement to require submission to the [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-252.
Undisputed Material Facts and Justifiable Inferences
The Court deems the following to be the relevant undisputed facts and permissible inferences on which the resolution of the pending motions must be based:
1. Melanie, then age fifteen, was diagnosed by a treating psychiatrist (Dr. Niazi) as suffering from "panic disorder" or "panic attacks" that resulted in ongoing absences from public high school in the fall of 1997. (Pls.' Resp. To Defs.' Statement of Undisp. Facts (Pls.' Resp.), Ex. 2 at 19-20; Defs.' Mem., Exs. 3, 4).
2. Mrs. Pollard received permission in the spring of 1998 to place Melanie on "homebound" instruction for the remainder of the 1997-98 school year based on her written application and substantiation of Melanie's continuing condition. (Defs.' Mem., Exs. 4, 5).
3. Melanie did not do well academically in homebound instruction as reported in a status update (e-mail message) sent by the instructor (Donaldson) to the Defendant Leabough's supervisor (Beasley) in late March of 1998. (Pls.' Resp., Ex. 17; Defs.' Mem., Ex. 6 at 27-28; Ex. 14 at 12-13; Ex. 16).
4. Melanie returned to school for the beginning of the 1998-99 school year but she began to miss days beginning in late September even though the school adjusted her class schedule and academic requirements in an effort to accommodate her condition. (Pls.' Resp., Ex. 20; Defs.' Mem., Ex. 2 at 87, 104; Ex. 5; Ex. 6 at 12; Ex. 14 at 42).
5. Melanie attended school on only a sporadic basis from late September (after September 22) and into October and she did not attend at all after October 30, 1998. (Pls.' Resp., Ex. 1 at 29; Defs.' Mem., Ex. 1 at 15; Ex. 6 at 15).
6. Three written medical excuses were provided to explain Melanie's absences in the fall of 1998. The first medical excuse was by letter from Dr. Niazi dated September 22, 1998, which simply stated: "the above named [Melanie] is a patient of mine and has a panic disorder, which at times can cause her to be disabled." (Pls.' Resp., Ex. 21). A second letter, dated September 23, 1998, was provided by the family physician, Dr. Haden, Jr., and read: "Melanie Pollard has been under my care from Sept. 21, 1998, to Sept. 23, 1998, and may return to school on Sept. 24, 1998." (Pls' Resp., Ex. 22). A third, more detailed letter, dated October 17, 1998, was provided by Dr. Niazi. In the letter, Dr. Niazi confirmed his opinion that "Melanie's absenteeism has been due to this condition" and he described various "attack symptoms." (Pls.' Resp., Ex. 20).
7. Additional communication between the school and treating professional includes a telephone conversation in late October 1998 between the school staff psychologist, Dr. Ehis, and Dr. Niazi in which Dr. Ehis recalled that an agreement was reached on a "coordinated effort" that would include an "emotional" and educational evaluation of Melanie. (Defs.' Mem., Ex. 7). Dr. Niazi had no meaningfld recollection of the conversation during the discovery phase of the case. (Pls.' Resp., Ex. 4 at 37).
8. Additional contact occurred between the school guidance counselor (Amos) and Mrs. Pollard when the counselor telephoned and met with the mother on repeated occasion to "find a way to help [Melanie] attend better." (Defs.' Mem., Ex. 1 at 58; Ex. 6 at 9-10, 15).
9. Mrs. Pollard allowed Melanie to stay home indefinitely after October 30, 1998, and she never undertook to provide any home schooling until after related juvenile court proceedings in February and March of 1999. (Defs.' Mem., Ex. 1 at 15, 29; Ex. 2 at 93-94; Ex. 31). Melanie testified: "I was just so stressed and upset and I was sick and everything, and [my mother] just told me I didn't have to go [to school] anymore." (Defs.' Mem., Ex. 2 at 120).
10. Mrs. Pollard picked up homework and study assignments from the school for Melanie during the late fall semester in 1998, but "[t]eachers report most [assignments were] never returned" and there is no evidence of any constructive educational activity or progress before the practice was stopped in December because of the teachers' concern that Melanie would not understand the materials without instruction. (Pls. Resp., Ex. 17 at 3).
11. Mrs. Pollard applied for another period of homebound instruction for her daughter by letter dated November 30, 1998, for the same reasons as previously presented for the spring 1998 term. (Defs.' Mem., Exs. 5, 11, 12).
12. Mrs. Pollard's request for homebound instruction indicated that it was to terminate in February 1999 and the portion of the application requiring certification by an attending specialist appeared to have a signature other than Dr. Niazi who had signed the previous application. (Defs.' Mem., Exs. 5. 12; Ex. 14 at 13, 20-2 1, 29-30).
13. The school official responsible for reviewing the request for homebound education (Beasley) had concerns about the veracity of the information provided and sought verification from Dr. Niazi whom she understood had been Melanie's treating psychiatrist.
14. A coordinated evaluation (Child Study Team) that was to include Mrs. Pollard and Melanie was also scheduled as had been contemplated before the application for homebound instruction was submitted. (Defs.' Mem., Ex. 14 at 20, 36; Ex. 15).
15. Beasley was unable to contact Dr. Niazi and Mrs. Pollard declined to participate or allow Melanie to participate in the evaluation process because she thought the process would be too stressful for Melanie. (Defs.' Mem., Ex. 6 at 17-18, 20; Ex. 15; Ex. 20).
16. Mrs. Pollard informed the guidance counselor (Amos) as of the date of the scheduled child study evaluation (November 13, 1998) "that she did not want the evaluation or anything further in the way of services from the school." (Defs.' Mem., Ex. 6 at 17).
17. Beasley directed that Melanie not be noted as absent from school while the application for homebound instruction was pending "because I was trying to process the request" . . . "if the homebound request had been approved, I didn't want to be — you know, have been marked absent" (Defs.' Mem., Ex. 14 at 24, 28).
18. The procedure of not recording a student as absent while an application for homebound instruction was pending was standard procedure so as to not "build up absences"for those who may be approved for homebound instruction and who were unable to attend school for a verified reason. (Defs.' Mem., Ex. 6 at 33).
19. Beasley notified Mrs. Pollard by letter, dated January 14, 1999, that she had been unable to contact the treating psychiatrist and that Melanie would have to return to school immediately because the request for homebound instruction could not be verified. (Defs.' Mem., Ex. 17).
20. Melanie understood Beasley's letter to require her to return to school immediately, although Mrs. Pollard interpreted the directive as well as the subsequent oral instructions of Beasley and Leabough as only requests or suggestions. (Defs.' Mem., Ex. I at 32-34, 81; Ex. 2 at 95, 97).
21. Mrs. Pollard decided to apply for the home schooling of Melanie after being informed that the application for homebound instruction had been rejected. (Defs.' Mem., Ex. 2 at 97).
22. Dr. Young, another psychiatrist and an associate of Dr. Niazi's, contacted Beasley by telephone on or about January 19, 1999, and confirmed Melanie's ongoing condition but expressed concern over Mrs. Pollard's reported failure to participate in the evaluation process. (Defs.' Mem., Ex. 14 at 19-20, 22, 25-26; Ex. 20)
23. Beasley talked to Mrs. Pollard thereafter by telephone when Mrs. Pollard told Beasley for the first time of her intention to home school her daughter. (Defs.' Mem., Ex. 14 at 25-26).
24. Beasley cautioned Mrs. Pollard in the conversation to comply with all required procedures for home schooling and that Melanie would have to "return to school immediately or enroll in an approved educational program." (Defs.' Mem., Ex. 14 at 26; Ex. 20).
25. Mrs. Pollard did not enroll Melanie in any approved educational program until late March 1999 at the earliest. (Defs.' Mem., Ex. 31).
26. Beasley discussed Melanie's situation with Superintendent Stewart and, with his concurrence, she instructed Leabough to "check and make sure everything as far as Melanie being in school was appropriate." (Defs.' Mem., Ex. 14 at 26-27).
27. Leabough contacted Mrs. Pollard by telephone to request additional information concerning, she thought, the application for homebound instruction at which time Mrs. Pollard told Leabough of her intent to home school Melanie. (Defs.' Mem., Ex. 19 at 64-65).
28. Leabough told Mrs. Pollard in the conversation that she would have to follow required procedures and that Melanie would have to attend school until all requirements had been met. (Defs.' Mem., Ex. 19 at 65).
29. Mrs. Pollard delivered a letter to Stewart on January 25, 1999, in which she announced her intention to withdraw Melanie from school in order to educate her at home pursuant to the Virginia Home School statute. (Defs.' Mem., Ex. 21).
30. Leabough discussed the situation with Beasley and they concluded after reviewing attendance records that Melanie was not in compliance with the state compulsory attendance law for the 1998 fall semester. (Defs.' Mem., Ex. 14 at 27-29; Ex. 19 at 65-66).
31. Melanie had a history of school absenteeism whether excused or not. She had missed thirty-one days in Z grade, twenty-one days in 8th grade, forty-four days in 9th grade (before beginning homebound instruction in February 1998), and at least the same amount in the following fall and winter (nothing after October 30 and at least two weeks before then), all before Mrs. Pollard announced her intention to home school her daughter in mid-January of 1999. (Pls.' Mem., Ex. 17; Defs.' Mem., Ex. 1 at 29).
32. The history of absences in prior years was of concern to at least Beasley. (Defs.' Mem., Ex. 14 at 45).
33. No adverse action had been taken in regard to Melanie's absences in prior years. (Pls.' Resp., Ex. 6 at 46; Defs.' Mem., Ex. 6 at 14, 97-98).
34. School policy did not make any distinction between excused and unexcused absences for purposes of considering attendance issues. (Defs.' Mem., Ex. 6 at 8, 21-22).
35. Leabough, not aware at the time that Mrs. Pollard had provided written notice of her intent to home school Melanie, but who had been orally informed by Mrs. Pollard of such intentions in any event, filed a Child In Need of Services petition (CHINS) on January 28, 1999, in local juvenile and domestic relations court seeking intervention on the basis of Melanie's history of absenteeism. (Defs.' Mem., Ex. 19 at 66-67; Ex. 22).
36. Beasley either instructed Leabough to file the petition or otherwise fully authorized the action based on the record of absences and what Beasley perceived to be the concerns of Dr. Young concerning Mrs. Pollard's refusal (or declination) to participate in the evaluation process. (Defs.' Mem., Ex. 14 at 39-41, 45).
37. Leabough was, and had been for some time, the school official whose recognized duties (with the knowledge and consent of the School Board, including Stewart) Included the submission of such a petition. (Pls.' Resp., Ex. 29 at 36; Defs.' Mem., Ex. 19 at 6-7).
38. Preliminary proceedings were held in juvenile court at which time a guardian ad litem was appointed to represent Melanie's interests and private counsel entered an appearance on behalf of the Pollards. (Defs.' Mem., Exs. 23, 24, 25).
39. Court proceedings were continued until March 4, 1999, with aproforma finding in the interim (no taking of evidence occurred) on form orders that sufficient reason existed to justify an evaluation for special educational services and a continuance of the matter for a dispositional hearing. (Defs.' Mem., Exs. 25, 26, 27).
40. The court ultimately found at the dispositional hearing on March 4 that Melanie was "a child with special educational needs," but not "a child in need of services", and it specifically reserved ruling on the issue of whether she was "a child in need of supervision." (Defs.' Mem., Ex. 29).
41. The court also granted, without objection by the school system, Mrs. Pollard's request to home school Melanie for the remainder of the 1998-1999 school year subject to her transitioning back into school the following fall. The court specifically authorized Leabough to "file such further proceedings" as she deemed necessary to insure full compliance with the court directive. (Defs.' Mem., Ex. 29).
42. Some seventy-nine (79) requests for home schooling were received by the school system for the 1998-1999 school year and only one (not Melanie Pollard) was rejected. (Defs.' Answer to Pls.' First Set of Interrogs., nos. 7 and 8).
43. Fifteen petitions were filed in juvenile court seeking its oversight involving students during the same period and only two of them (including Melanie Pollard) involved home schooling issues. (Defs.' Ans. to First Set of Interrog., no. 6).
44. Melanie successfully completed the school year and the juvenile court approved, again without objection from the school system, Mrs. Pollard's petition to home school Melanie for her final year of high school. (Defs.' Mem., Exs. 32, 33).
45. Melanie successfully completed the home schooling program on schedule. (Defs.' Mem., Ex. 2 at 54, 126, 130-3 1).
The Plaintiffs' numerous objections to the Defendants' enumeration of undisputed material fact are sustained or overruled to the extent that the Court's findings do or do not encompass them. The Court otherwise relies on its review of the record and counsel's qualified concurrence at oral argument with the Court's then-proposed findings of fact as a basis for their validity.
Homebound instruction consists of periodic instruction and testing at the student's home by authorized school personnel while the student is unable for verified reason to physically attend school.
Dr. Young recalled in deposition telling Mrs. Pollard that Melanie would have to participate in the evaluation process before the request for homebound instruction could be considered for approval. (PlS.' Mem., Ex. 5 at 33).
Home schooling is authorized by statute and refers to educational instruction at home conducted by non-school personnel (including parent) pursuant to an approved plan. Va. Code § 22.1-254:1.
Analysis
The Plaintiffs assert causes of action under 42 U.S.C. § 1983. Section 1983 establishes a civil rights violation where any person is deprived of a right secured by the Constitution or laws of the United States by someone acting under color of state law.Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327, (1986) (holding that mere lack of due care by a state official does not amount to a Fourteenth Amendment violation). In this case, Mrs. Pollard claims she was deprived of a Fourteenth Amendment right to direct the upbringing and education of her child by Leabough when the CHINS petition was filed by her; that the CHINS petition was vindictively prosecuted by Leabough; that Stewart is liable as Leabough's supervisor; and that the Goochland County School Board bears municipal liability for these actions.There is an established federal constitutional due process right of a parent or guardian to manage and direct the education of a child under his lawful control. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Hooks v. Clark County School Dist., 228 F.3d 1036, 1041 (9th Cir. 2000) (citing cases). However, the right to do so is "subject to `reasonable government regulation.'" See, e.g., Hooks v. Clark County Sch. Dist., 228 F.3d at 1041. The Plaintiffs do not dispute the fact that any asserted due process right to home school is subject to reasonable regulation. (PlS. Mem. at 13). Furthermore, the Plaintiffs do not challenge the legality of the controlling state statute that provides for the educational alternative to home school subject to certain prescribed requirements, and the statute has not otherwise been held to be violative of any constitutional mandate. Rather, the Plaintiffs urge that they were in full compliance with all statutory requirements when the petition seeking court intervention was filed such that the act of seeking judicial oversight impermissibly and vindictively infringed upon the exercise of the constitutional right involved. (Pls.' Mem. at 13) ("The Pollards insist that they were obeying Virginia's reasonable regulations regarding home school."). Specifically, Plaintiffs urge that the plain language of the home school statute only required Mrs. Pollard to notify the appropriate school authority, as she did, of her intent to complete the required application process within the prescribed thirty-day period and that the school could not require that the student remain in or, as in Melanie's situation, return to school until the application was approved. (Pls.' Mem. at 15 16).
It is not clear, and the issue is not addressed by either party, whether the constitutional right asserted is that of the parent, the child, or both. However, further discussion and resolution of the issue is not necessary in any event because there was no violation of such a constitutional right in respect to anyone's interest.
Substantive due process protection under the Fourteenth Amendment "provides heightened protection against government interference with certain fundamental rights and liberty interest," including the right of a parent to make decisions regarding the rearing of his or her child.Washington v. Glucksberg, 321 U.S. 702, 720 (1997).
However, Plaintiffs' counsel's apparent reliance on such authority as the Supreme Court decision in Troxel v. Granville, 530 U.S. 57 (2000), andM. L. B. v. S. L. J., 262 U.S. 102 (1996), is misplaced because those cases involved different issues of parental rights and interests with different applications of corresponding constitutional proscriptions.
While not a model of clarity, the pertiment statutory language provides:
Any parent who moves into a school division or begins home instruction after the school year has begun shall notify the division superintendent of his intention to provide home instruction as soon as practicable and shall comply with the requirements of this section within thirty days of such notice.
Va. Code Ann. 22.1-254.1(B). However, the statute's parameters are sufficiently clear when analyzed in light of common sense and other statutory language in the same provision as well as the compulsory school attendance statute. Va. Code Ann. § 22.1-254. Indeed, section A of the home school statute provides that home schooling is "an acceptable alternative form of education under the policy of the Commonwealth of Virginia" . . . "when the requirements of [the] section have been satisfied . . . ." Va. Code Ann. § 22.1-254.1(A). At the same time, the compulsory attendance law requires that during the school year every child between the ages of five and eighteen must either be in a public, private or parochial school, approved tutorial program, or in an approved program of home instruction. Va. Code Ann. § 22.1-254.
Melanie Pollard was not in an approved program of home instruction on January 28, 1999, when the petition seeking court intervention was filed. Mrs. Pollard had not satisfied the requirements of the home school statute. Therefore, the requirements of the compulsory attendance law required Melanie's presence in school until the requirements for home instruction had been met. The so-called thirty-day "window" is obviously a limitation period to complete the approval process in regard to any individual application so that curricula are not unnecessarily interrupted or delayed. It cannot be fairly interpreted as a "grace period" during which the student may remain out of school and avoid all instructional requirements if for no other reason than the potential for gross abuse. For example, an inattentive parent who discovers that a child has been going to the mall everyday rather than to school could quickly file a perfunctory notice to home school in order to avoid a truancy action that could result in additional parental involvement and responsibility. Even then, the parent could decide not to complete the application process within the thirty-day window and the school would be hardpressed to claim truancy if the student's absence had been excused in the interim.
See supra Undisp. Material Facts and Justifiable Inferences ¶ 9 (hereinafter Findings).
A Virginia juvenile court has the statutory authority to require a custodial parent to take affirmative action if the child is found to be in need of services. Va. Code § 16.1-241.
The Court is troubled by the apparent incongruity f the school has the policy of recording all absences during the home school application process but not in regard to students applying for homebound instruction, but that issue is not before the Court and there is the reasonable inference that those situations involving homebound applications typically involve students ivith readily verifiable need such as acute illness.
Melanie Pollard had been absent from school for months when the decision was made to file the CHINS petition. (Findings ¶¶ 4-5). Mrs. Pollard had told the school earlier that she no longer wanted its services. (Findings 6 16). She then submitted an application for homebound instruction that raised reasonable questions for the school so as to motivate personnel to seek confirmation from whom they reasonably thought to be the treating professional. (Findings ¶ 13). Such confirmation was not fortheoming through no fault of the school and the application for homebound instruction was accordingly denied for lack of verification of necessary information. (Findings ¶ 19). As soon as the application for homebound education was denied and Melanie was told to return to school, Mrs. Pollard decided to pursue home schooling. (Findings ¶¶ 20-2 1). Contact was then made by Dr. Young who does not recall details of the conversation but who also cannot deny the clear recollection and notes taken by Beasley, the school official to whom he spoke, that he expressed a concern with the situation because of Mrs. Pollard's apparent lack of cooperation in having a recommended evaluation conducted. (Findings ¶ 22). The school was required by law to seek court oversight if there was evidence of truancy. Va. Code Arm. § 22.1-262. At the very least, given the extended history of absences for just the previous fall term and whether or not the periodic medical and/or psychological information from the professionals involved justified all of the absenteeism, it was reasonable for the school to seek court intervention to either confirm the legitimacy of the situation or prescribe an appropriate course of action. Such action under the circumstances that existed does not "shock the conscience" so as to establish a basis to claim the denial of substantial due process. Rochin v. California, 342 U.S. 165, 173 (1952); Weller v. Dept. of Soc. Serv. for Baltimore, 901 F.2d 387, 391 (4th Cir. 1990).
The undisputed fact that Leabough did not check and find out that Mrs. Pollard had given notice of her intent to home school Melanie before filing the petition does not change the analysis or provide a basis to assert she was grossly negligent in failing to do so. Even if she had, Mrs. Pollard's action, especially in the entire context of the situation, would have simply provided any reasonable person an additional basis for concern because of the indication that the mother would attempt anything to avoid returning her child to school.
Furthermore, it cannot be said as a matter of law — nor should it have even been asserted — that there was any personal ammus, supervisory dereliction of duty, or custom or practice of constitutional abuse to support claims of "vindictive prosecution" and supervisory liability if for no other reason than the undisputed fact that the school (presumably involving Leabough) processed and approved no less than seventy-eight of seventy-nine similar requests for home schooling during the same time period. (Findings ¶ 42). Moreover, if there was any individual or institutionalized scheme to deprive the Plaintiffs of their constitutional right to home educate, more than just two out of fifteen court petitions filed during the same time frame would have involved related issues. (Findings ¶ 43).
The claim of "vindictive prosecution" does not significantly differ from the alternative allegation of malicious prosecution that has been withdrawn in light of controlling case precedent. See Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000) (citing cases). See also Gregg v. Commonwealth, 224 Va. 356, 297 S.E.2d 799 (1982) (a CHINS proceeding is not a criminal proceeding involving a Fourth Amendment liberty or property deprivation as required to sustain a § 1983 action).
Plaintiffs' counsel, in response to the Court's inquiry during oral argument, submitted materials concerning another student who counsel suggests was treated differently from Melanie by being allowed to remain out of school pending the processing of an application for home schooling. The Court will order that the materials be made a part of the record, but it will not give the information any weight because it is not clear from an examination of the documentation that the student involved remained out of school during the process and, if so, under what circumstances that may be distinguishable from Melanie's situation in any event.
The doctrine of qualified immunity protects school officials such as Leabough and Stewart from liability unless the Plaintiffs can show that as government officials they violated "clearly established statutory or constitutional rights of which a reasonable person would have known" under a standard of objective reasonableness. Francis v. Barnes, 69 F. Supp.2d 801, 807 (E.D.Va. 1999). Certainly, such is not the case here, given the reasoned debate in the case of whether the very filing of the CHINS petition itself violated their state statutory and federal constitutional rights so as to permit Melanie to remain out of school without any educational alternative pending completion of the application process, aside from the additional factor of whether a reasonable state actor under the same circumstances should have been aware of any clearly established standard. See S.P. v. City of Takoma Park, 134 F.3d 260, 265 (4th Cir. 1998). Accordingly, the doctrine of qualified immunity shields the individual defendants and, in turn, the School Board from supervisory or municipal liability in any event. Saircier v. Katz, ___ U.S. ___, 121 S.Ct. 2151 (2000); B.M.H. v. Sch. Bd. of the City of Chesapeake. Va., 883 F. Supp. 560 (E.D. Va. 1993). See, e.g., Brown v. Daniel, 2000 WL 1455443, at *4 (4th Cir. Sept. 29, 2000).
The action would have to be dismissed against the Defendant Stewart in any event because the claim(s) against him are clearly in his official capacity and the real party in interest is the governmental entity involved. Kentucky v. Graham, 473 U.S. 159 (1985); Spell v. McDonald, 824 F.2d 1380 (4th Cir. 1987).
The sole remaining constitutional issue concerns the Plaintiffs' assertions that the Defendants violated state laws with respect to properly designating an attendance officer and authorizing certain personnel to file CHINS petitions. Although the argument could fairly be made that a formal written directive is not necessarily required by the statute, here the agent was acting in such a capacity with the knowledge and consent of the Superintendent as provided for by Va. Code Ann. § 22.1-258 in order to delegate the necessary authority. Furthermore, any failing may, at most, constitute a violation of state statutory proscription. A violation of state law does not establish a constitutional deprivation.West v. Adkins, 487 U.S. 42, 48 (1988). Therefore, even if all of Plaintiffs' legal assertions were correct, such a state law violation cannot be construed as the deprivation of a federal constitutional right to sustain a § 1981 or § 1983 claim. Pfoltzer v. County of Fairfax, 775 F. Supp. 874, 888 (B. D. Va. 1991) (citing cases).
Finally, the Plaintiffs plead a pendent state law violation of gross negligence. Because Plaintiffs cannot sustain any of their federal claims, it is unnecessary to consider their state law claims because the Court can simply divert itself of subject matter jurisdiction. However, the Plaintiffs clearly fail in any event to raise even a genuine issue of disputed material fact as to gross negligence in order to overcome the affirmative defense of qualified immunity. To allege gross negligence in Virginia, a plaintiff must establish that a defendant engaged in an act that was "a heedless and palpable violation of a legal duty respecting the rights of others [and] . . . amounts to the absence of slight dingence or the want of even scant care." Frazier v. City of Norfolk, 234 Va. 388, 393 (1987). The evidence is undisputed that the actions taken by any of the Defendants did not rise to such a level and therefore summary relief as to the claim is appropriate on that basis as well.
Conclusion
For the reasons stated, the Court holds that no federal constitutional right of the Plaintiffs was violated and that even if there is a basis for potential liability, the doctrine of qualified immunity mandates summary relief.
The Court concludes that the doctrine of collateral estoppel as urged by the Defendants in regard to the state court proceedings does not apply because there was no final adjudication of the issue that was unfavorable to the Plaintiffs. Miagra v. Warren City Sch. Dist. Bd. of Education, 449 U.S. 75, 83 (1984); Norfolk W. Ry. v. Bailey Lumber Co., 221 Va. 638, 640, 272 S.E.2d 217, 218 (1980).
The separate motions to compel with requests for sanctions that have been submitted by each side and taken under advisement by the Court are the subject of a separate order. The Court concludes from an analysis of the various discovery demands involved that the production of any material in response to each respective request is not likely to have altered the Court's findings so as to justify further delay.
An appropriate Order shall issue.
DENNIS W. DEHNAL United States Magistrate Judge.
Date: September 27 2001 Richmond, Virginia