Opinion
Case No. 4:20-cv-10094-KMM
2021-03-02
Bianca N. DIGENNARO, Plaintiff, v. Michael L. MALGRAT, et al., Defendants.
Devon M. Jacob, Pro Hac Vice, Jacob Litigation Inc., Mechanicsburg, PA, Benjamin Lloyd Crump, Ben Crump Law, PLLC, Tallahassee, FL, for Plaintiff. Michael Thomas Burke, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Defendants Michael L. Malgrat, Kenneth JW Waite, Fred C. Sims, City of Key West, Florida. Dirk Matthew Smits, Gaelan Jones Esq., Vernis & Bowling, Islamorada, FL, for Defendants Ashley N. Henriquez, Fran Herin, Monroe County School District, Kyle Sheer.
Devon M. Jacob, Pro Hac Vice, Jacob Litigation Inc., Mechanicsburg, PA, Benjamin Lloyd Crump, Ben Crump Law, PLLC, Tallahassee, FL, for Plaintiff.
Michael Thomas Burke, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Defendants Michael L. Malgrat, Kenneth JW Waite, Fred C. Sims, City of Key West, Florida.
Dirk Matthew Smits, Gaelan Jones Esq., Vernis & Bowling, Islamorada, FL, for Defendants Ashley N. Henriquez, Fran Herin, Monroe County School District, Kyle Sheer.
ORDER
K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendants Ashley N. Henriquez ("Defendant Henriquez"), Kyle Sheer ("Defendant Sheer"), and Fran Herin's ("Defendant Herin") (collectively, the "School District Defendants") Motion to Dismiss. ("Mot.") (ECF No. 37). Plaintiff Bianca N. Digennaro ("Plaintiff"), as the legal guardian of HMM, filed a Response in Opposition. ("Resp.") (ECF No. 40). The School District Defendants filed a Reply. ("Reply") (ECF No. 41). The Motion is now ripe for review.
Pursuant to Rule 5.2(a) of the Federal Rules of Civil Procedure, HMM's initials are used in lieu of his full name because he is a minor. Fed. R. Civ. P. 5.2(a).
The following background facts are taken from the Amended Complaint ("Am. Compl.") (ECF No. 35) and are accepted as true for purposes of ruling on this Motion to Dismiss. Fernandez v. Tricam Indus., Inc. , No. 09-22089-CIV-MOORE/SIMONTON, 2009 WL 10668267, at *1 (S.D. Fla. Oct. 21, 2009).
This case arises under 42 U.S.C. § 1983. See generally Am. Compl. At all relevant times, HMM was an eight (8) year old elementary school student at Gerald Adams Elementary School (the "Elementary School") in the Monroe County School District (the "School District"). Id. ¶¶ 12, 16, 34. The School District Defendants worked at the Elementary School—Defendant Henriquez as a teacher, Defendant Sheer as an assistant principal, and Defendant Herin as a principal. Id. ¶¶ 13–15. Defendants Kenneth JW Waite ("Defendant Waite"), Fred C. Sims ("Defendant Sims"), and Michael L. Malgrat ("Defendant Malgrat") (collectively, the "Police Officer Defendants") were police officers for the Key West Police Department. Id. ¶ 23. Defendant Malgrat was assigned to serve as a school resource officer at the Elementary School on December 14, 2018. Id. ¶¶ 24, 27.
The School District Defendants "knew that HMM had a Positive Behavioral Intervention Plan ("PBIP") and an Individual Education Plan ("IEP")." Id. ¶ 18. The IEP included HMM's diagnoses of Oppositional Defiance Disorder, Adjustment Disorder with Mixed Disturbance of Emotional Conduct, and Attention Deficit Hyperactivity Disorder, and "noted the primary exceptionality as emotional or behavioral disability." Id. ¶¶ 17, 19–20. The PBIP "listed non-physical responses to be utilized with HMM to maintain a safe learning environment." Id. ¶ 30.
On or about December 14, 2018, Defendant Henriquez was assigned to supervise HMM, however HMM was not "well known" to Defendant Henriquez as she was not HMM's regular teacher. Id. ¶ 33. That same day, Defendant Henriquez reported to Defendant Herin, Defendant Sheer, and/or Defendant Malgrat that Defendant Henriquez directed HMM multiple times to either sit on a bench or to sit quietly next to her, but HMM refused. Id. ¶¶ 35–37. Defendant Henriquez "went hands-on in an attempt to physically move HMM" but HMM then told Defendant Henriquez "not to put her hands on him." Id. ¶ 38. Although Defendant Henriquez reported that HMM "punched" her, she understood that HMM merely made contact with Defendant Henriquez's body as HMM was attempting to pull his arm away from her grasp. Id. ¶¶ 41–42.
Plaintiff alleges that the School District Defendants and/or Defendant Malgrat "summoned [Defendant Waite and Defendant Sims] to the school for an unlawful purpose, i.e., for the purpose of teaching HMM a lesson and trying to scare HMM into ‘behaving’ in the future." Id. ¶ 48. Upon Defendant Waite and Defendant Sims's arrival at the Elementary School, HMM was sitting "quietly and calmly" on a bench in the hallway just outside of the school office and was "visibly upset and scared." Id. ¶¶ 50, 52. The Police Officer Defendants "intentionally led HMM to believe that he was going to jail." Id. ¶ 53. Specifically, one of the Police Officer Defendants told HMM he was going to jail and told him to stand up and put his hands behind his back. Id. ¶ 54. The Police Officer Defendants then "handcuffed and/or permitted HMM to be handcuffed." Id. ¶ 56. At some point, HMM's father was present in the school building. See id. ¶ 60.
After placing the handcuffs on HMM, the Police Officer Defendants determined that they were too large and could not be properly used on a child of HMM's size, so they removed the handcuffs and advised HMM to walk with his hands in front of him. Id. ¶¶ 57–58. HMM, "visibly upset and scared," asked for his father and was told he had left the school, even though his father was still in the building. Id. ¶¶ 59–60. The Police Officer Defendants told HMM that what happened was "very serious" and that it was time to "learn" and "grow" from his mistake. Id. ¶ 61. HMM was escorted out of the building to a marked patrol vehicle, where he was permitted to enter the rear seat without handcuffs and put on his seatbelt. Id. ¶¶ 62–63. The Police Officer Defendants "locked HMM in the back of the patrol vehicle" and Defendant Waite and/or Defendant Sims "then transported HMM to the adult jail for processing." Id. ¶¶ 64–65.
As a result of this incident, "HMM suffered a psychological injury that manifested itself physically, i.e., loss of breath, hives, stomach aches, headaches, insomnia, nightmares, and refusal to sleep alone." Id. ¶ 68.
Plaintiff's Amended Complaint includes the following claims specific to the School District Defendants in their individual capacities: Fourteenth Amendment (State Created Danger) Pursuant to § 1983 (Count I); and Fourth Amendment (Duty to Intervene) Pursuant to § 1983 (Count III). Id. ¶¶ 69–76; 87–93. Now, the School District Defendants move the Court to dismiss Counts I and III of the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See generally Mot. II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted). This requirement "give[s] the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and alterations omitted). The court takes the plaintiff's factual allegations as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008).
A complaint must contain enough facts to plausibly allege the required elements. Watts v. Fla. Int'l Univ. , 495 F.3d 1289, 1295–96 (11th Cir. 2007). A pleading that offers "a formulaic recitation of the elements of a cause of action will not do." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis , 297 F.3d 1182, 1188 (11th Cir. 2002).
III. DISCUSSION
The School District Defendants move to dismiss Plaintiff's § 1983 claims against them because they are entitled to qualified immunity. See generally Mot. Specifically, the School District Defendants argue that they are entitled to qualified immunity because (1) they were acting within the scope of their discretionary authority; and (2) their actions did not violate a "clearly established" constitutional right. Mot. at 6–15. In response, Plaintiff argues that the School District Defendants’ request for immunity is premature and they are not entitled to immunity at this juncture. Resp. at 3, 9. Specifically, Plaintiff argues that "a sufficient custodial relationship existed between HMM and the School [District] Defendants"; the School District Defendants’ conduct, which "foreseeably led to an arrest and use of force solely to teach an 8 year old special needs boy a lesson" was conscience-shocking; the School District Defendants’ involvement of police violated clearly established law; and the School District Defendants’ duty to intervene required them to "stop each other from involving the police, from the start, for an unlawful purpose." Id. at 4–5, 7, 9.
"Qualified immunity provides complete protection for government officials sued in their individual capacities where their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Quinette v. Reed , 805 F. App'x 696, 701 (11th Cir. 2020) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). A government official "is entitled to qualified immunity where his actions would be objectively reasonable to a reasonable [official] in the same situation." Id. (citing Anderson v. Creighton , 483 U.S. 635, 638–41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). To assert a qualified immunity defense, a government official must have been acting within the scope of his discretionary authority when the allegedly wrongful acts occurred. Id. (citation omitted). Once the government official establishes that they were acting within the scope of their discretionary authority, the burden shifts to the plaintiff to show that the defendants violated a clearly established constitutional right. See Carter v. Butts Cnty., Ga. , 821 F.3d 1310, 1319 (11th Cir. 2016) (citation omitted). Courts employ a two-step inquiry to determine whether government officials are entitled to qualified immunity: (1) the facts alleged in the complaint show the official's conduct violated a constitutional right, and (2) the right was clearly established at the time of the alleged misconduct. See Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Courts need not address these steps in sequential order. See id. at 236, 129 S.Ct. 808.
Further, it is proper for courts to dismiss a complaint because the defendants are entitled to qualified immunity. Indeed, the Supreme Court has urged courts to apply qualified immunity at the earliest possible stage of litigation because the defense is immunity from the burdens of defending a lawsuit, not just immunity from damages or liability. See Hunter v. Bryant , 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). As such, "[a]lthough the defense of qualified immunity is typically addressed at the summary judgment stage of a case, it may be ... raised and considered on a motion to dismiss." Corbitt v. Vickers , 929 F.3d 1304, 1311 (11th Cir. 2019) (citation omitted). "Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (citation omitted).
A. Defendants Were Acting Within Their Discretionary Authority
First, the Court must determine whether the School District Defendants have established that they were acting within the scope of their discretionary authority. See Carter , 821 F.3d at 1319 (citation omitted). The School District Defendants argue that they were acting within the scope of their discretionary authority because their actions, as described in the Amended Complaint, "were squarely within the course and scope of their duties as school officials: ensuring that certain criminal offenses are reported to law enforcement." Mot. at 10. The School District Defendants argue that "[w]ithout authority to support the notion that reporting a potential crime to a law enforcement officer was entirely outside the scope of the School District Defendant[s’] duties as school officials, the Amended Complaint effectively alleges that [the School District Defendants] took action within the scope of their discretionary authority." Id.
Plaintiff does not directly respond to this argument. See generally Resp. However, Plaintiff argues that (1) Defendant Henriquez "understood that HMM had not ‘punched’ her as the word ‘punch’ is commonly used"; (2) Defendant Henriquez "understood that while HMM was attempting to pull his arm away from her grasp, his arm apparently inadvertently made contact with her body"; (3) Defendant Henriquez "knew that no credible threat to the school or its occupants ever existed, and that police intervention was neither necessary nor appropriate"; (4) "HMM had an extensive ‘disciplinary’ history in the school" and because prior similar instances must have been handled without police involvement, "the claimed ‘punch’ was pretext to involve the police"; (5) the School District Defendants "summoned [Defendant Waite and Defendant Sims] to the school for an unlawful purpose, i.e., for the purpose of teaching HMM a lesson and trying to scare HMM into ‘behaving in the future’ "; and (6) the School District Defendants and/or Defendant Malgrat "knowingly acted outside of their respective policies and training." Id. at 6. A government official is acting within the scope of their discretionary authority if the actions "(1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority." Moore v. Pederson , 806 F.3d 1036, 1042 (11th Cir. 2015) (citation omitted). "The inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act." Harbert Int'l, Inc. v. James , 157 F.3d 1271, 1282 (11th Cir. 1998). "Instead, a court must ask whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official's discretionary duties." Id. (citation and internal quotation marks omitted).
The Florida legislature imposes specific obligations on public school districts to "promote a safe and supportive learning environment in schools by protecting students and staff from conduct that poses a threat to school safety." Fla. Stat. § 1006.13(1). This includes the requirement to "enter into agreements with the county sheriff's office and local police department specifying guidelines for ensuring that acts that pose a threat to school safety, whether committed by a student or adult, are reported to a law enforcement agency." Id. § 1006.13(4)(a). Further, "[t]he agreements must include the role of school resource officers, if applicable, in handling reported incidents and a procedure requiring school personnel to consult with school resource officers concerning appropriate delinquent acts and crimes." Id. § 1006.13(4)(b).
Here, the Court finds that the School District Defendants were acting within the scope of their discretionary authority. As an initial matter, many of Plaintiff's arguments amount to no more than requesting that the Court infer the mindset of the School District Defendants—something the Court is unable to do at this stage in the litigation and, more importantly, does not prevent dismissal. See Resp. at 6; Bonilla v. United States , 652 F. App'x 885, 892 (11th Cir. 2016) (finding an Assistant United States Attorney's "alleged knowledge of [the plaintiff's] actual innocence is both a legal conclusion and an ‘unwarranted deduction of fact’ that will not prevent dismissal") (quoting Jaharis , 297 F.3d at 1188 ) (alterations omitted). Even if the Court could decipher the School District Defendants’ mindset, what they "knew" or "understood" is irrelevant to the question of qualified immunity.
As noted above, the inquiry is not whether the conduct was taken for an improper purpose, but whether the actions taken, if taken for a proper purpose, would be within the scope of the School District Defendants’ duties. See Harbert Int'l , 157 F.3d at 1282 (citation omitted). Thus, the appropriate inquiry here is whether contacting law enforcement after a teacher reports being struck by a student is within the scope of the School District Defendants’ discretionary duties. The Florida legislature has made clear that it is within a school district's authority to determine when to report incidents concerning school safety, such as delinquent acts and crimes, to law enforcement or to consult with school resource officers, regardless of what was intended or what was understood to have taken place. See § 1006.13.
The School District Defendants, when acting in concert with the performance of their job duties, have the legal authority to contact the police in the interest of school safety. See id. ; see also Moore , 806 F.3d at 1042. As such, the Court finds that it was within the scope of the School District Defendants’ discretionary authority to contact Defendant Waite and Defendant Sims upon receiving Defendant Henriquez's report that HMM struck her. Accordingly, the burden shifts to Plaintiff to establish that the School District Defendants violated his clearly established constitutional rights. See Pearson , 555 U.S. at 232, 129 S.Ct. 808 ; Carter , 821 F.3d at 1319.
B. Plaintiff Has Not Established That Defendants Violated Clearly Established Constitutional Law
The School District Defendants argue that "no clearly established constitutional right exists that would require the School District Defendants to refrain from reporting potentially criminal conduct to law enforcement, or to prevent law enforcement officers from arresting a student following a probable cause determination." Mot. at 11. In Response, Plaintiff argues that an objectively reasonable school official "would have known that it would violate clearly established law to involve the police, in a minor disciplinary matter involving an 8 year old special needs boy, on the pretext that he ‘punched’ a teacher in the chest after she grabbed him in violation of a PBIP and IEP, for the unlawful purpose of teaching the boy a lesson, when it was foreseeable that doing so would lead to an arrest and use of force." Resp. at 7.
To demonstrate that a constitutional right is "clearly established," the party opposing qualified immunity must identify "a controlling case or robust consensus of cases" finding a constitutional violation "under similar circumstances." District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 591, 199 L.Ed.2d 453 (2018) (citation omitted). The ultimate inquiry is "whether the state of the law gave the defendants fair warning that their alleged conduct was unconstitutional." Vaughan v. Cox , 343 F.3d 1323, 1332 (11th Cir. 2003) (citation and internal quotation marks omitted).
"The line between the lawful and the unlawful is often vague." Barts v. Joyner , 865 F.2d 1187, 1194 (11th Cir. 1989). " Harlow ’ s ‘clearly established’ standard demands that a bright line be crossed." Id. "The line is not to be found in abstractions—to act reasonably, to act with probable cause, and so forth—but in studying how these abstractions have been applied in concrete circumstances." Id. Thus, "[a] constitutional right is clearly established if controlling precedent has recognized the right in a concrete and factually defined context." Chesser v. Sparks , 248 F.3d 1117, 1122 (11th Cir. 2001) (citations and internal quotation marks omitted). "A plaintiff cannot avoid the qualified immunity defense by referring to general rules and to the violation of abstract rights." Id. (citation and internal quotation marks omitted). "[I]f case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant." Oliver v. Fiorino , 586 F.3d 898, 907 (11th Cir. 2009) (citation and internal quotation marks omitted).
1. Plaintiff's Fourteenth Amendment Claim
In the Amended Complaint, Plaintiff alleges that the School District Defendants had a special relationship with HMM and an attendant duty to protect HMM from injury. Am. Compl. ¶¶ 71, 73. Plaintiff alleges that the School District Defendants "increased the risk that HMM would suffer injury when they caused [Defendant Waite and Defendant Sims] to be summoned to the school for the unlawful purpose of teaching HMM a lesson and trying to scare him into ‘behaving’ in the future." Id. ¶ 74. The School District Defendants argue that "Plaintiff's Amended Complaint fails to allege any of the School District Defendants engaged in egregious or otherwise conscious-shocking [sic] conduct" and that "no custodial relationship exists between HMM and the School District Defendants that would give rise to a special affirmative duty owed by the School [District] Defendants to HMM." Mot. at 12; Reply at 5. Plaintiff responds that a sufficient custodial relationship existed here because "HMM did not volunteer to be detained by government officials on the bench outside of the school office for a disciplinary matter and/or arrest." Resp. at 4. Further, Plaintiff argues that the School District Defendants’ conduct, which "foreseeably led to an arrest and use of force solely to teach an 8 year old special needs boy a lesson[,]" is conscience-shocking "as evidenced by the overwhelming international media coverage with commentary from horrified readers condemning the Defendants’ conduct." Id. at 5.
"[T]he Due Process Clause was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression." Cnty. of Sacramento v. Lewis , 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ) (internal quotation marks omitted). "The substantive component of the Due Process Clause protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them." Waddell v. Hendry Cnty. Sheriff's Office , 329 F.3d 1300, 1305 (11th Cir. 2003) (quoting Collins , 503 U.S. at 125, 112 S.Ct. 1061 ) (internal quotation marks omitted). However, "the Fourteenth Amendment must not be used through [§] 1983 as a ‘font of tort law’ to convert state tort claims into federal causes of action." Id. (quoting Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ. , 229 F.3d 1069, 1074 (11th Cir. 2000) ). "The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." Id. (quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. , 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) ) (internal quotation marks omitted).
There are limited exceptions where the Eleventh Circuit holds that the Constitution imposes an affirmative duty of care on the state. Doe v. Braddy , 673 F.3d 1313, 1318 (11th Cir. 2012). The first exception is found where a custodial relationship exists, which will "automatically give rise to a governmental duty, under substantive due process, to protect persons from harm by third parties." Id. (citing White v. Lemacks , 183 F.3d 1253, 1257 (11th Cir. 1999) ). Custodial relationships are "those which arise from the incarceration of prisoners or other forms of involuntary confinement through which the government deprives individuals of their liberty and thus of their ability to take care of themselves." White , 183 F.3d at 1257 (discussing Collins , 503 U.S. 115, 112 S.Ct. 1061 ).
Here, Plaintiff cites to no authority where any court has found that the requisite custodial relationship exists in the school setting. See Resp. at 4. Rather, Plaintiff distinguishes two cases where the custodial relationship was found not to be present in the school setting. See id. ; Davis v. Carter , 555 F.3d 979, 982 n.2 (11th Cir. 2009) (finding no custodial relationship where the student voluntarily participated in an extracurricular after-school activity); Giordano v. Sch. Bd. of Lee Cnty. , No. 2:19-cv-439-FtM-99NPM, 2019 WL 5528347, at *4 (M.D. Fla. Oct. 25, 2019) (finding no custodial relationship where the student voluntarily participated in summer football practice). The Court does not find Plaintiff's argument, that "HMM did not volunteer to be detained by government officials on the bench outside of the school office for a disciplinary matter and/or arrest[,]" to be persuasive such that it should give rise to the kind of custodial relationship contemplated in Collins . School officials routinely direct students’ whereabouts during the course of the school day. Finding a custodial relationship present under the facts in this case is akin to finding a custodial relationship any time a student is summoned to the principal's office for disciplinary action. And, because the Eleventh Circuit has rejected the notion that compulsory school attendance laws give rise to a constitutional duty of protection under the Due Process Clause, the Court finds that the additional act of requiring a student to sit on a bench outside of the school office pending the resolution of a disciplinary matter does not give rise to a constitutional duty of protection here. See Wyke v. Polk Cnty. Sch. Bd. , 129 F.3d 560, 569 (11th Cir. 1997) ("By mandating school attendance, the state simply does not restrict a student's liberty in the same sense that it does when it incarcerates prisoners or when it commits mental patients involuntarily. Absent that type of restraint, there can be no concomitant duty to provide for the student's ‘safety and general well-being.’ ") (citations omitted).
Absent the finding of a custodial relationship, the Court turns to the second exception to the rule against governmental duties to protect: where a government official engages in conduct that can be characterized as "arbitrary or conscience shocking in a constitutional sense." Waddell , 329 F.3d at 1305.
"To rise to the conscience-shocking level, conduct most likely must be ‘intended to injure in some way unjustifiable by any government interest.’ " Davis , 555 F.3d at 982 (quoting Lewis , 523 U.S. at 849, 118 S.Ct. 1708 ). "In the educational setting, the Eleventh Circuit has found [conscience]-shocking conduct in only two cases." Giordano v. Sch. Bd. of Lee Cnty., Fla. , No. 2:19-cv-439-FtM-99NPM, 2019 WL 5528347, at *4 (M.D. Fla. Oct. 25, 2019). Both cases involved corporal punishment. See Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ. , 229 F.3d 1069 (11th Cir. 2000) (finding an alleged due process violation where a high school football coach struck a student with a metal weight lock, resulting in the student's loss of use of one eye); Kirkland ex rel. Jones v. Greene Cnty. Bd. of Educ. , 347 F.3d 903 (11th Cir. 2003) (finding an alleged due process violation where a school principal repeatedly struck a student with a metal cane in the head, neck, and ribs). The Eleventh Circuit has also instructed that "[a] range of teacher conduct exists that is neither corporal punishment nor so conscience-shocking as to trigger a substantive due process violation." T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty., Fla. , 610 F.3d 588, 599 (11th Cir. 2010) (citation and internal quotation marks omitted). "[E]ven intentional wrongs seldom violate the Due Process Clause." Braddy , 673 F.3d at 1318 (quoting Waddell , 329 F.3d at 1305 ) (internal quotation marks omitted).
Here, the alleged wrongdoing by the School District Defendants was contacting and summoning law enforcement to the school after Defendant Henriquez reported that HMM struck her. While Plaintiff contends that such contact was made for an unlawful purpose, there are no facts to support that conclusory allegation in the Amended Complaint. Such contact with law enforcement serves a justifiable government interest as evidenced in the Florida Statutes. See § 1006.13. Even if the School District Defendants did act with the intent of teaching HMM a lesson, Plaintiff has not set forth facts suggesting that the School District Defendants’ actions in this case is as conscience shocking as the physical beatings that took place in Neal and Kirkland . See T.W. ex rel. Wilson , 610 F.3d at 601–02 (finding a teacher's exercises of corporal punishment and force resulting in psychological harm, while "inappropriate" and "truly unfortunate," were not "so brutal, demeaning and harmful as literally to shock the conscience of the court.") (citations and internal quotation marks omitted). In T.W. ex rel. Wilson , the Eleventh Circuit noted that their "decision ‘comports with the Supreme Court's mandate to remain vigilant in policing the boundaries separating tort law from constitutional law.’ " Id. at 602 (quoting Nix v. Franklin Cnty. Sch. Dist. , 311 F.3d 1373, 1379 (11th Cir. 2002) ).
Accordingly, the Court does not find that the School District Defendants violated HMM's substantive due process rights under the Fourteenth Amendment.
2. Plaintiff's Fourth Amendment Claim
"The Fourth Amendment's freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest." Vinyard v. Wilson , 311 F.3d 1340, 1347 (11th Cir. 2002). Courts have found law enforcement officers liable "for failing to intervene when a fellow officer uses excessive force if he or she ‘is present at the scene’ and ‘fails to take reasonable steps to protect the victim.’ " Militello v. Sheriff of Broward Sheriff's Office , 684 F. App'x 809, 813 (11th Cir. 2017) (quoting Skrtich v. Thornton , 280 F.3d 1295, 1302 (11th Cir. 2002) ). The Eleventh Circuit has "not uncovered[ ] any decision of the United States Supreme Court, the Eleventh Circuit, or the Florida Supreme Court which holds that a non-law-enforcement officer ... has a duty to intervene to halt an unlawful arrest by a law enforcement officer." Wilson v. Strong , 156 F.3d 1131, 1135 (11th Cir. 1998) (declining to find that an animal control officer had a duty to intervene to halt the unlawful conduct of an arresting law enforcement officer).
In the Amended Complaint, Plaintiff alleges that the School District Defendants (1) "had a duty to intervene to prevent some or all of their co-defendants from engaging in unlawful conduct"; (2) "had a duty to intervene to prevent some or all of their co-defendants from causing HMM to unlawfully suffer injury"; and (3) "had a meaningful and appreciable opportunity to intervene to prevent some or all of their co-defendants from engaging in some or all of the aforementioned conduct but failed or refused to do so." Am. Compl. ¶¶ 89–91. The School District Defendants argue that the duty to intervene does not apply "in the context of non-similarly situated state actors, such as school officials and police officers." Mot. at 13. The School District Defendants argue that "[a]s non-law enforcement officers, the School District Defendants neither had the duty, nor ability, to intervene in the investigation and custodial arrest of HMM by duly sworn police officers." Id. at 14. In Response, Plaintiff concedes that the School District Defendants "are correct that they did not have a duty to interfere with police officers and effecting an arrest using force related to same," however Plaintiff argues that the School District Defendants had "a duty to stop each other from involving the police, from the start, for an unlawful purpose." Resp. at 9.
Plaintiff's argument is quite tenuous, and Plaintiff acknowledges that this claim in the Amended Complaint is "in-artfully drafted." See Resp. at 9. Plaintiff has failed to demonstrate that the School District Defendants’ action of involving law enforcement was wrongful, much less unlawful. The Florida Statutes plainly authorize law enforcement intervention under the factual circumstances here. There was a report that HMM struck his teacher, and the School District Defendants summoned law enforcement to the school accordingly. In the Amended Complaint, Plaintiff cites to one case involving a police officer's use of excessive force, and a fellow officer's failure to intervene. See Priester v. City of Riviera Beach, Fla. , 208 F.3d 919 (11th Cir. 2000). Plaintiff cites to no authority in either the Amended Complaint or the Response to suggest that it was unlawful for the School District Defendants to have contacted law enforcement under the circumstances such that each of the School District Defendants had a duty to intervene to stop each other from initiating that contact, and thus their failure to do so violated HMM's constitutional rights under the Fourth Amendment.
Accordingly, the Court does not find that the School District Defendants violated HMM's clearly established constitutional rights under the Fourth Amendment. And, the School District Defendants have established that their conduct falls within the scope of their discretionary authority. Plaintiff fails to establish that the School District Defendants’ conduct violated clearly established constitutional law. As such, the School District Defendants are entitled to qualified immunity as to Counts I and III.
IV. CONCLUSION
UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the School District Defendants’ Motion to Dismiss (ECF No. 37) is GRANTED. It is FURTHER ORDERED that Counts I and III of the Amended Complaint are hereby DISMISSED WITHOUT PREJUDICE.
DONE AND ORDERED in Chambers at Miami, Florida, this 2nd day of March, 2021.