Opinion
Case No. 3:18-cv-1307-JGC
12-14-2021
D.M., et al., Plaintiffs, v. BOARD OF EDUCATION TOLEDO PUBLIC SCHOOLS, et al., Defendants.
For the Plaintiffs: Richard R. Malone, Milton E. Pommeranz, Malone, Ault & Farell, Toledo, Ohio. For Defendants: Amy M. Natyshak, Shawn A. Nelson, Marshall & Melhorn, Toledo, Ohio, For Kim Fraber, Lucas County Children Services (Interested Party), Elaine Berendsen Szuch, John A. Borell, Sr., Maureen O. Atkins, Office of the Prosecuting Attorney - Lucas County Toledo, Ohio.
For the Plaintiffs: Richard R. Malone, Milton E. Pommeranz, Malone, Ault & Farell, Toledo, Ohio.
For Defendants: Amy M. Natyshak, Shawn A. Nelson, Marshall & Melhorn, Toledo, Ohio,
For Kim Fraber, Lucas County Children Services (Interested Party), Elaine Berendsen Szuch, John A. Borell, Sr., Maureen O. Atkins, Office of the Prosecuting Attorney - Lucas County Toledo, Ohio.
ORDER
James G. Carr, Sr. United States District Judge
In this action, Toledo Public Schools ("TPS") student, D.M., and his legal guardian, Laura Manees, sue the TPS Board and three of its employees assigned to its Robinson Achievement school: Principal David Manley, teacher Valerie Powell, and classroom aide Sonja Austin. The suit arises from a classroom incident involving physical restraint of D.M. by the three individual defendants. Plaintiffs allege that the defendants used unnecessary force in restraining D.M., causing physical injuries for which they seek damages.
In a prior order, I dismissed all constitutional claims against the Board of Education. (Doc. 9, pgID 110).
In their federal claims, Plaintiffs’ assert discrimination claims against the defendants under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. Plaintiffs also claim that defendants violated D.M.’s constitutional rights under 42 U.S.C. § 1983 by: 1) unlawfully seizing D.M. in violation of the Fourth Amendment; 2) depriving him of his liberty without due process of law; and 3) denying him equal protection under the law in violation of the Fourteenth Amendment. Plaintiffs also assert state common-law claims of assault, battery, and intentional infliction of emotional distress.
Pending is defendants’ Motion for Summary Judgment (Doc. 38). For the reasons discussed below, I grant defendants’ motion as to plaintiffs’ federal claims. I decline to exercise supplemental jurisdiction over plaintiffs’ state-law claims.
Also pending is defendants’ Objections to and Motion to Strike Plaintiffs’ Affidavit and Plaintiffs’ Memorandum in Opposition in Part. (Doc. 50). In that motion, defendants challenge the admissibility of various exhibits to Plaintiffs’ summary judgment opposition brief. Because I have determined that the admissibility of those exhibits would have no effect on this case's outcome, I overrule the defendants’ motion to strike them as moot.
Background
D.M. was a student in TPS’ Robinson Achievement ("Robinson"), an elementary school. (Doc. 38, pgID 1878); (Doc. 47, pgID 1302). He was approximately nine-years-old when the events at issue here occurred. (Doc. 44-1, pgID 1179, 1181).
D.M. suffered from Attention Deficit/Hyperactivity Disorder, Oppositional Defiance Disorder, and General Anxiety Disorder. (Doc. 44-1, pgID 1180). He had a history of engaging in disruptive and violent behavior. (Doc. 41, pgID 551-52).
D.M. attended Robinson under an Individualized Education Program. (Id. ). Under that plan, D.M.’s behavioral goals were to: 1) work on controlling anger with no physical acting out; 2) follow directions during transition times; and 3) work on getting along better with students/staff. (Doc. 44-1, pgID 1180).
D.M.’s aunt and guardian, Manees, testified at deposition that she received a phone call on June 16, 2016 from Robinson behavioral health case manager Kristen Chapman, informing her that D.M. was upset and that she needed to come to the school. (Doc. 42, pgID 656). At the time, D.M. was participating in a summer reading program at Robinson. (Doc. 38, pgID 189); (Doc. 47, pgID 1303).
Manees’ son, Jason Thompson, drove her to the school. (Doc. 45, pgID 1267). Manees testified that they arrived approximately fifteen minutes after receiving Chapman's call. (Doc. 42, pgID 657). She stated that when she entered D.M.’s classroom, she saw D.M. face down on the floor and saw defendants Powell and Austin, "one on his waist area and the other holding his feet." (Id. , pgID 658, 660). She also saw Principal Manley "was on the other side with one hand on [D.M.’s] neck and the other hand had [D.M.’s] arm twisted back." (Id. , pgID 660).
Thompson testified that when he entered the classroom, he saw his nephew on the ground with two woman and one man. He stated that: the man "was towards [D.M.’s] upper half of his body holding him down while the two females were at the lower half of his body, um, holding his legs." (Doc. 45, pgID 1268-69). Thompson testified that Manley "had his forearm or arm in some position on the back of [D.M.’s] neck ...." (Id. , pgID 1270). He stated that the two women "were at back [sic] half, um, just holding him around the ankle to calf area, um, to keep his legs from moving." (Id. , pgID 1271).
Contrary to plaintiffs’ claim, Thompson did not testify that "[w]hat appeared to be the full weight of Mr. Manley's body was on D.M.’s upper back and neck area." (Doc. 47, pgID 1303). That allegation simply is not supported by the record. In fact, other than a para-professional who, at times, straddled D.M.’s thighs or waist, (Doc. 41-1, pgID 596), plaintiffs have not presented any evidence that any of the defendants put their weight on D.M. They have presented no evidence to show that the defendants caused D.M. difficulty breathing.
Defendants Austin and Powell have testified that the incident began when they instructed D.M. to sign off the computer because it was time for lunch. D.M. became angry, started growling, lifted a chair, and threw it. (Doc. 39-1, pgID 276-77); (Doc. 44, pgID 46-47). They then grabbed D.M.’s arms from each side in an effort to restrain him, while they attempted to deescalate the situation. (Doc. 39-1, pgID 277); (Doc. 44, pgID 1130). D.M. resisted, flailing his arms, making noises, trying to kick, and spitting. (Doc. 44, pgID 1183); see (Doc. 39-1, pgID 277).
In the process of trying to control D.M., Powell and Austin tripped and fell with him to the ground. (Doc. 39-1, pgID 277); (Doc. 44, pgID 1133-34). Once on the ground, D.M. continued to fight the teachers efforts to restrain him by "spitting, fighting, scratching, you know[,] just whatever you could possibly think of." (Doc. 39-1, pgID 278).
Powell and Austin were on either side of D.M. holding his arms while they continued to attempt to calm him. (Doc. 39-1, pgID 278); (Doc. 44, pgID 1141). They were unable to calm D.M., and at some point, he began hitting his head on the ground. (Doc. 39-1, pgID 278-79). Austin put D.M.’s jacket on the floor to act as a cushion. (Id. ).
While this was going on, Powell and Austin had a colleague call Manees and ask her to come to the school. (Doc. 44, pgID 1138-39). They then summoned Principal Manley for assistance. (Doc. 39-1, pgID 279) (Doc. 44, pgID at 1140).
When Manley arrived, D.M. was on the floor in a prone position with Powell and Austin holding him. (Doc. 43, pgID 948). D.M. was still flailing and hitting his head on the floor. (Id. , pgID 949). Manley took hold of D.M.’s feet because he was kicking. (Id. , pgID 950).
Manley testified that restraint of a student in the prone position ("prone restraint") "w[as] not authorized." (Id. , pgID 949-50). At some point, Manley grabbed D.M.’s arm. He stated that he "was trying to get underneath to see, you know, lift him but he was, he was jerking so [Manley] let him go." (Id. , pgID 951).
Manley, too, attempted to calm D.M. (Id. , pgID 952). He and the other teachers "tried several times" to stand D.M. up but, Manley testified, "the problem was that when [D.M.] jerked away [Manley] let go because [he] didn't want, [he] was afraid to hurt [D.M.’s] shoulder. (Id. , pgID 953); see (Doc. 44, pgID 1141-20). The defendants’ struggle with D.M. ended after Manees and Thompson walked into the room, and D.M. calmed down. (Id. ).
Summary Judgment Standard
Summary judgment is appropriate under Fed. R. Civ. P. 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The movant must initially show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the movant carries its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 "requires the nonmoving party to go beyond the [unverified] pleadings" and submit admissible evidence supporting its position. Celotex, supra , 477 U.S. at 324, 106 S.Ct. 2548.
Summary judgment is proper where "in light of the evidence viewed in the light most favorable to the [nonmovant], no reasonable juror could fail to return a verdict for the [movant]." Benison v. Ross , 765 F.3d 649, 658 (6th Cir. 2014). When "a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial," "[s]ummary judgment is mandated." Celotex, supra , 477 U.S. at 322, 106 S.Ct. 2548. In response to plaintiffs’ federal claims, defendants raise a qualified immunity defense.
Discussion
1. Qualified Immunity Standard
"The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). "A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ " Mullenix v. Luna , 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) ).
For a state actor to be liable, "[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. Al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). "To be clearly established, a legal principal must [be] dictated by ‘controlling authority’ or ‘a robust consensus’ of cases of persuasive authority.’ " District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589-90, 199 L.Ed.2d 453 (2018) (quoting al–Kidd, supra , 563 U.S. at 741–742, 131 S.Ct. 2074 ).
When a state actor raises a qualified immunity defense, it becomes the plaintiff's burden to show that qualified immunity does not apply. Garretson v. City of Madison Heights , 407 F.3d 789, 798 (6th Cir. 2005).
2. Defendants Are Entitled to Qualified Immunity
The parties dispute whether defendants placed D.M. in the prone position or they and he fell into that position while struggling, and he then refused to stand up. They also dispute whether the defendants held D.M. on the floor or whether they only attempted to hold D.M.’s arms, legs, and head while he was on the floor to prevent his ongoing, violent resistance and self-harm. Neither of those disputes are material to the outcome of the case, however, because under either set of circumstances, qualified immunity bars the plaintiffs’ federal claims.
This is so because there is no controlling precedent or "consensus of cases of persuasive authority" establishing that holding a person in a prone position alone constitutes a constitutional violation. Instead, plaintiffs rely on the general principle that "[t]he Sixth Circuit found the prohibition against gratuitous force was clearly established as of October 2010." (Doc. 47, pgID 1310) (citing Williams v. Morgan , 652 F. App'x 365, 375 (6th Cir. 2016) ).
The Supreme Court, however, repeatedly has admonished courts against defining clearly established law " ‘at a high level of generality,’ " White v. Pauly , ––– U.S. ––––, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam) (quoting al-Kidd supra , 563 U.S. at 742, 131 S.Ct. 2074 ). "[T]he clearly established law must be "particularized" to the facts of the case." Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Supreme Court has "stressed that the ‘specificity’ of the rule is ‘especially important in the Fourth Amendment context.’ " Wesby, supra , 138 S. Ct. at 590 (quoting Mullenix, supra , 577 U.S. at 12, 136 S.Ct. 305 ).
Plaintiffs’ argument regarding "gratuitous force" fails to meet these requirements. None of the cases they cite held that merely holding a person while he or she was in the prone position constitutes a Fourth Amendment violation. Those cases each involved an extraordinary and clearly unnecessary level of violence or cruelty. There is no Supreme Court precedent holding that employing a prone restraint without more violates the Fourth Amendment or any other constitutional right. Instead, the somewhat sparse caselaw on point have held that subjecting a person to a prone restraint alone does not violate the person's constitutional rights. See, e.g. , Hanson as Tr. for Layton v. Best , 915 F.3d 543, 548 (8th Cir.) ("This court has not deemed prone restraint unconstitutional in and of itself the few times we have addressed the issue"; "comparable appellate cases have yet to produce a sufficiently particularized "robust consensus" to defeat qualified immunity"), cert. denied , ––– U.S. ––––, 140 S. Ct. 50, 205 L.Ed.2d 42 (2019) ; Estate of Phillips v. Milwaukee , 123 F.3d 586, 593 (7th Cir. 1997) ("Restraining a person in a prone position is not, in and of itself, excessive force when the person restrained is resisting arrest."); Cotton v. Stephens , No. 4:18CV3138, 2020 WL 7632216, at *12 (D. Neb.) ("This Court has previously held that the use of prone restraint is not objectively unreasonable when a detainee actively resists officer directives and efforts to subdue the detainee."); Timpa v. Dillard , No. 3:16-CV-3089-N, 2020 WL 3798875, at *4 (N.D. Tex.) ("there are multiple Fifth Circuit opinions holding that prone restraints do not even constitute excessive force"); E.C. v. U.S.D. 385 Andover , No. 18-1106-EFM, 2019 WL 2073927, at *8 (D. Kan.) (finding qualified immunity applied to use of prone restraint on student; stating that "the Tenth Circuit has repeatedly upheld individual defendants’ qualified immunity" in prone restraint cases).
Williams, supra , 652 F. App'x at 375, did not involve a prone restraint but held that a reasonable school police officer would know it would violate the Fourth Amendment to "accost a 13-year-old girl, without provocation or resistance, use his size advantage to place her physically against a wall; verbally menace or threaten her while he twisted her arm behind her back and lifted her off the floor until he broke that arm; and then maintain pressure on that broken arm, despite her pleas for relief, as he forced her down the hall to the principal's office with further verbal threats." See also Hope v. Pelzer , 536 U.S. 730, 734-35, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (a reasonable person would have known that handcuffing inmate shirtless to a hitching post for hours at a time in the hot Alabama sun with limited water and bathroom breaks violated his constitutional rights); Norton v. Stille , 526 F. App'x. 509, 512–14 (6th Cir. 2013) (slamming "a handicapped fifty-eight-year-old woman constrained by a motorized scooter against a wall, breaking her arm, and then gratuitously taking her to the floor in a way that broker her arm again constituted applying excessive force ..."); A.A. v. Otsego Loc. Sch. Bd. of Educ. , No. 3:15-CV-1747, 2016 WL 7387261, at *2, *5 (N.D. Ohio) (Helmick, J.) (police officer "repeatedly assaulting and battering a student by slamming his body to the floor; detaining him without cause; forcibly placing him in the prone position and restraining him mechanically with handcuffs; and arresting him all when he posed no danger to himself or others" reasonably should have known his actions violated constitutional rights).
In the absence of federal precedent to defeat qualified immunity, plaintiffs argue that Ohio's Administrative Code and TPS’ policy prohibit the use of prior restraints. That argument is unavailing. Qualified "immunity may be overcome only by clearly established federal law, not state law." Xiques v. Knight , 25 F. App'x 251, 253 (6th Cir. 2001) (emphasis in original). As the court in E.C., supra , 2019 WL 2073927, at *8, explained:
The Court accepts the fact that prone restraints are prohibited under [Ohio] state law, but even if the prone restraint in this case could be attributed to each of the Individuals, they would nevertheless be entitled to qualified immunity from § 1983 liability because, under the circumstances, the prone restraint did not violate [the student's] constitutional rights.
In this case, there is no evidence that defendants used "gratuitous force" against D.M. other than restraining him from injuring himself and others through prone restraint. For example, there is no evidence that they put their body weight on his neck or torso, that he had any difficulty breathing, that they slammed him to the floor, or that they struck him.
Against the state of the applicable precedent, it would be irrational to conclude that an educator acting under the facts presented above reasonably should have known that he or she was violating D.M.’s constitutional rights. Accordingly, qualified immunity protects defendants against all plaintiffs’ federal claims.
3. Supplemental State Law Claims
Plaintiffs have pled state common-law claims for assault, battery, and intentional infliction of emotional distress. Because I have dismissed all federal claims, and the state-law claims based on use of a prone restraint raise novel legal issues under Ohio law, I will not exercise supplemental jurisdiction over those claims. See Novak v. MetroHealth Med. Ctr. , 503 F.3d 572, 583 (6th Cir. 2007). An Ohio court would be a more appropriate venue for those claims.
CONCLUSION
Accordingly, for the reasons set forth above, it is ORDERED THAT:
1. Defendants’ Objection and Motion to Strike, (Doc. 50), shall be and the same hereby is, OVERRULED;
2. Defendants’ Motion for Summary Judgment shall be, and the same hereby is, GRANTED as to plaintiffs’ federal claims (Counts I-V of plaintiffs’ First Amended Complaint (Doc. 5);
3. Judgment shall be, and the same hereby, is granted against plaintiffs and in favor of defendants on Counts I-V;
4. Counts VI-VIII shall be, and the same hereby are, DISMISSED WITHOUT PREJUDICE to plaintiffs’ ability to assert those claims in state court;
5. The Clerk of Court shall mark this case closed.
So ordered.