[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-15562         ELEVENTH CIRCUIT
                                                       MAY 5, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                    D. C. Docket No. 07-00064-CV-WLS-1

GREGORY R. MAHONE,
as Next of Kin to Gregory M. Mahone
and Kregory D. Mahone,
JO ANN MAHONE,
as Next of Kin to Gregory M. Mahone
and Kregory D. Mahone, Minors,


                                                     Plaintiffs-Appellants,

                                      versus

BEN HILL COUNTY SCHOOL SYSTEM,
BEN HILL COUNTY SCHOOL DISTRICT,
JON KEY,
Individually and in His Official
Capacity as Superintendent of Schools,
JACKIE HALL,
Individually and in His Official
Capacity as Principal,
GAIL STOKES,
Individually and in Her Official
Capacity as Assistant Principal, et al.,


                                                    Defendants-Appellees.
                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                         _________________________

                                    (May 5, 2010)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Gregory R. Mahone, Sr. and Jo Ann Mahone, as next of kin to twin minors

Gregory Mahone and Kregory Mahone (collectively “Appellants”), appeal the

grant of summary judgment from their action alleging violations under 42 U.S.C. §

1983 and state law claims to, inter alia, Ben Hill County School District (the

“School District”); John Key (“Key”), Superintendent of Schools; Jackie Hall

(“Hall”), Principal of Ben Hill County Middle School; and Sammy Reynolds

(“Reynolds”), physical education instructor (collectively “Appellees”). On appeal,

Appellants argue that: (1) the district court improperly engaged in weighing the

evidence on the summary judgment record; (2) the district court erred in granting

summary judgment to Reynolds on their substantive due process claim under §

1983; (3) the district court erred in finding that the action taken by Reynolds did

not amount to excessive force; (4) the district court erred in finding that the actions



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of the School District, Key, and Hall did not amount to deliberate indifference; and

(5) the district court erred in finding that Key, Hall, and Reynolds were entitled to

qualified immunity.1 Specifically, the issues on appeal refer only to the “Trash

Can Incident,” in which Reynolds allegedly shoved Gregory’s head in a trash can,

and Kregory and another student witnessed Reynolds pull Gregory out of the trash

can by Gregory’s legs. At the time of the incident, Gregory and Kregory were

sixth grade special education students in Reynolds’s physical education class.

Gregory suffered from poor motor skills, asthma, and Attention Deficit

Hyperactivity Disorder (“ADHD”). Kregory suffered from cerebral palsy,

scoliosis, asthma, and ADHD. Reynolds learned about the Appellants’ disabilities

at the beginning of the school year. Reynolds had read Gregory’s individualized

education plan (“IEP”), which addresses his learning disability, and Kregory’s

accommodation plan (504 plan) which identified Kregory’s physical disabilities

and asthma. Gregory did not have a physical disability on record with the School

District. As a result of the “Trash Can Incident,” Key requested that Hall conduct

an investigation into the incident to determine what happened. Hall interviewed

both Gregory and Kregory in the presence of their mother, interviewed other



       1
        Appellants have abandoned all other claims that the district court disposed of on
summary judgment; they acknowledge this and fail to address the remaining issues in their brief.
See Sepulveda v. U.S. Att’y Gen., 

, 1228 n.2 (11th Cir. 2005) (per curiam).

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students in the physical education class, took statements from two middle school

physical education instructors, and interviewed and had Reynolds prepare a written

statement of his version of the events. Hall communicated his findings to Key in a

memorandum, in which Hall’s investigation led him to conclude that Reynolds and

Gregory frequently engaged in “horseplay” in physical education class in a joking

manner. Gregory, Kregory, and the other witness described Reynolds’s conduct

during the “Trash Can Incident” differently in the way Reynolds held Gregory in

proximity to the trash can. Hall concluded that Reynolds was playing with

Gregory on the day of the “Trash Can Incident,” and there was no evidence of

Reynolds being malicious or mean-spirited. Hall indicated he counseled with

Reynolds, requesting that he cease from engaging in this type of conduct with his

students. Key met with the Appellants’ parents to address his conclusions based

on the investigation conducted by Hall. Upon review of the parties’ briefs and the

record, we affirm the district court’s grant of summary judgment to the School

District, Key, Hall, and Reynolds, as they are entitled to qualified immunity.

      “We review de novo the district court’s resolution of a summary judgment

motion on the basis of qualified immunity, and in so doing, we resolve all issues of

material fact in favor of the plaintiff.” Oliver v. Fiorino, 

, 901 (11th

Cir. 2009). The moving party is entitled to summary judgment when “the



                                          4
pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

      The doctrine of qualified immunity “shields public officials from suits

against them in their individual capacities for torts committed while performing

discretionary duties unless the tortious act violates a clearly established statutory or

constitutional right.” Zivojinovich v. Barner, 

, 1071 (11th Cir. 2008)

(per curiam) (citation omitted). In order to receive qualified immunity, officials

must demonstrate that they were engaged in a discretionary function at the time of

the allegedly unlawful act. Bryant v. Jones, 

, 1295 (11th Cir. 2009)

(citation omitted). Once this is done, the burden shifts to the plaintiff to establish

that the officials were not entitled to qualified immunity. 

This requires the plaintiff to demonstrate that: (1) the officials violated a

constitutional right, and (2) the constitutional right was clearly established at the

time of the alleged wrongful act. 

The district court can use

its discretion in determining which of the two prongs to address first. Pearson v.

Callahan, 

, 818 (2009).

      First, Appellants argue that the district court interpreted material facts and

weighed them against them and in favor of Appellees. Appellants contend that in



                                            5
instances, the district court did not accept material evidence as part of the summary

judgment record and weighed evidence that should have been left for the jury to

resolve. However, the record is clear that the district court applied the correct

standard in granting summary judgment to Appellees, and it viewed the evidence

in the light most favorable to Appellants. Appellants failed to show that there was

a genuine issue of material fact which would preclude summary judgment, and

Appellants’ brief in response to Appellees’ motion for summary judgment

submitted to the district court does not qualify as evidence to be considered under

the summary judgment record. Further, Appellants are mistaken in their belief that

the determination of whether a defendant is entitled to qualified immunity is a

question of fact for the jury. Entitlement to qualified immunity is a question of law

to be decided by the district court. See Bates v. Harvey, 

, 1239 (11th

Cir. 2008) (citation omitted). Therefore, the district court properly applied the

summary judgment standard.

      Second, Appellants contend that Reynolds violated Gregory’s substantive

due process rights under the Fourteenth Amendment because the “Trash Can

Incident” “deprived [Gregory] of his liberty interest to be free from physical and

mental abuse.” Specifically, Appellants contend that this Court’s cases involving

violations of substantive due process based on corporal punishment apply, and the



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district court erred in finding that this case does not involve corporal punishment.

      “Officials acting under color of state law violate the substantive component

of the Due Process Clause only when their conduct ‘can properly be characterized

as arbitrary, or conscience shocking, in a constitutional sense.’” Peterson v. Baker,

, 1336 (11th Cir. 2007) (per curiam) (citation omitted). However,

the Supreme Court has stated “that the due process guarantee does not entail a

body of constitutional law imposing liability whenever someone cloaked with state

authority causes harm.” County of Sacramento v. Lewis, 

, 848 (1998).

Additionally, “[s]ection 1983 must not be used as a font of tort law to convert state

tort claims into federal causes of action. We also have noted that even intentional

wrongs seldom violate the Due Process Clause.” 

(citations and quotations omitted). “[C]onduct intended to injure in some way

unjustifiable by any government interest is the sort of official action most likely to

rise to the conscience-shocking level.” County of 

.

      The district court was correct in finding that Reynolds’s actions did not

constitute corporal punishment. Additionally, the evidence presented before the

district court does not lead us to the conclusion that Reynolds’s actions were

arbitrary or conscience-shocking. Although Gregory allegedly suffers from Post

Traumatic Stress Disorder (“PTSD”) and other psychological injuries as a result of



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the “Trash Can Incident,” Gregory did not suffer any physical injury. Gregory’s

injuries do not rise to the level of severity to support a violation of substantive due

process. There is no evidence that Reynolds acted with malice or intent to harm

Gregory. As this Court recognized in a footnote in Peterson, “[n]ot all physical

injuries to a student caused by a teacher amount to corporal punishment. A range

of teacher conduct exists that is neither corporal punishment nor so conscience-

shocking as to trigger a substantive due process 

n.4

(adopting proposition from Lillard v. Shelby County Board of Education, 

, 725–26 (6th Cir. 1996), that “it is simply inconceivable that a single slap [to

the face] could shock the conscience” when the teacher had no legitimate purpose

for such conduct). Here, although Reynolds had no legitimate purpose for

allegedly shoving Gregory into a trash can, such conduct does not shock the

conscience in a constitutional sense, and Reynolds was subsequently reprimanded.

Therefore, we affirm the district court’s grant of summary judgment to Reynolds as

to the Appellants’ substantive due process claim.

      Third, Appellants argue that Reynolds conduct during the “Trash Can

Incident” falls within the ambit of corporal punishment and contend that

Reynolds’s conduct amounted to excessive force. In their brief, Appellants cite to

several cases involving excessive corporal punishment; however, as stated above,



                                            8
this case does not involve corporal punishment, and there is no evidence that

Reynolds acted to punish Gregory. The district court was correct in finding that in

the school context, a claim of excessive force may only arise under the Fourteenth

Amendment. See Ingraham v. Wright, 

, 671 (1977) (stating that the

Eighth Amendment is inapplicable to cases where public school teachers impose

corporal punishment). Therefore, the analysis for excessive force under the

Fourteenth Amendment is identical to the analysis under Appellants’ substantive

due process claim, and it cannot be said that Reynolds’s conduct was so excessive

as to shock the conscience. See Neal v. Fulton County Bd. of Educ., 

, 1075 (11th Cir. 2000). Thus, the district court did not err in granting

summary judgment to Reynolds on Appellants’ excessive force claim.

      Fourth, because Appellants fail to establish that Reynolds violated Gregory’s

constitutional rights, the district court was correct in finding that the School

District, Key, and Hall were entitled to qualified immunity as to Appellants’

Fourteenth Amendment substantive due process claim. Additionally, the record is

clear that Appellants presented no evidence to support their contention that the

School Board, Key, and Hall were the moving force behind Reynolds’s interaction

with Gregory. To the contrary, the “Trash Can Incident” was fully investigated,

and Reynolds was reprimanded for his conduct. Further, Appellants pointed to no



                                            9
policy, custom, or practice of condoning or ignoring excessive force against

students. See Monell v. Dep’t of Soc. Servs., 

, 694 (1978). Nor is

there evidence that the School Board, Key, or Hall were deliberately indifferent in

failing to investigate Reynolds’s “horseplay,” as we have determined that

“deliberate indifference is insufficient to constitute a due-process violation in a

non-custodial setting.” Davis v. Carter, 

, 983 (11th Cir. 2009)

(citation and quotation omitted). Therefore, the district court’s grant of summary

judgment to the School Board, Key, and Hall was proper.

      Finally, because Appellants failed to establish that the Appellees committed

any constitutional violations, Appellees were entitled to qualified immunity. See

(citation omitted). Therefore, we affirm.



AFFIRMED.




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