Filed: Jul. 07, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1009 H.H., a minor, by and through her mother and next friend, H.F.; H.F., Plaintiffs – Appellees, v. WANDA MOFFETT, individually and in her official capacity as an employee of the Chesterfield County School Board; ANN MINGUZZI, individually and in her official capacity as an employee of the Chesterfield County School Board, Defendants – Appellants, and CHESTERFIELD COUNTY SCHOOL BOARD; MARCUS J. NEWSOME, in his official ca
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1009 H.H., a minor, by and through her mother and next friend, H.F.; H.F., Plaintiffs – Appellees, v. WANDA MOFFETT, individually and in her official capacity as an employee of the Chesterfield County School Board; ANN MINGUZZI, individually and in her official capacity as an employee of the Chesterfield County School Board, Defendants – Appellants, and CHESTERFIELD COUNTY SCHOOL BOARD; MARCUS J. NEWSOME, in his official cap..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1009
H.H., a minor, by and through her mother and next friend,
H.F.; H.F.,
Plaintiffs – Appellees,
v.
WANDA MOFFETT, individually and in her official capacity as
an employee of the Chesterfield County School Board; ANN
MINGUZZI, individually and in her official capacity as an
employee of the Chesterfield County School Board,
Defendants – Appellants,
and
CHESTERFIELD COUNTY SCHOOL BOARD; MARCUS J. NEWSOME, in his
official capacity as Superintendent of Chesterfield County
Schools,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cv-00223-RLW)
Argued: December 4, 2008 Decided: July 7, 2009
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge Michael joined. Judge
Niemeyer wrote a dissenting opinion.
ARGUED: Steven Latham Micas, COUNTY ATTORNEY’S OFFICE FOR THE
COUNTY OF CHESTERFIELD, Chesterfield, Virginia, for Appellants.
William Henry Hurd, TROUTMAN SANDERS, L.L.P., Richmond,
Virginia, for Appellees. ON BRIEF: Stylian P. Parthemos,
COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF CHESTERFIELD,
Chesterfield, Virginia, for Appellants. Kevin W. Mottley,
Stephen A. Northup, Siran S. Faulders, Stephen C. Piepgrass,
TROUTMAN SANDERS, L.L.P., Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
This case concerns the treatment of a severely disabled
little girl, H.H., by the Appellants, a special education
teacher and a teaching assistant. H.H. and her mother, the
Appellees, have alleged, in an action brought under 42 U.S.C.
§ 1983 (2000), that Appellants maliciously kept H.H. restrained
in her wheelchair for hours at a time during the school day,
while they ignored her, verbally abused her, and schemed to
deprive her of educational services. The evidence taken in the
light most favorable to the Appellees demonstrates that
Appellants’ conduct violated H.H.’s clearly established right to
freedom from undue restraint under the Fourteenth Amendment, and
Appellants are therefore not entitled to qualified immunity as a
matter of law.
I.
Since we are asked to review the district court’s handling
of the Appellants’ motion for summary judgment, we present the
facts in the light most favorable to the Appellees. H.H., age
seven at the time of the filing of briefs in this appeal, was
born with cerebral palsy and a neurological condition known as
polymicrogyria, a seizure-causing disorder. According to her
mother, H.F., although H.H. is disabled, she “can crawl around
and is very mobile,” engaging in activities like “looking at
3
books, playing with musical instruments/toys, swinging, being
with other children, playing on the computer and crawling on
playgrounds.” (J.A. 368.) But, because she cannot yet walk on
her own, H.H. is transported in a wheelchair equipped with a
safety strap that prevents her from falling out.
From September 2002 until June 2005, H.H. was enrolled in
pre-school at Marguerite Christian Elementary School in
Chesterfield County, Virginia. According to H.F., H.H. was
happy at Marguerite Christian and was always an active
participant in her class. At the end of the 2004-2005 school
year, H.H. graduated from pre-school and was assigned to a
kindergarten program at Chesterfield County’s O.B. Gates
Elementary School (“O.B. Gates”) for the 2005-2006 school year.
O.B. Gates is a magnet school that serves both general education
students and students with special needs and disabilities.
There is some dispute about whether H.H. had an Individual
Education Plan (“IEP”) in place for her time at O.B. Gates, in
accordance with the Individuals with Disabilities in Education
Act. However, it is undisputed that, whether by IEP or
otherwise, H.H.’s schedule was supposed to include the following
activities outside of her wheelchair: 60 minutes of individual
physical therapy every 2 weeks to help her strengthen her legs;
group and individual speech therapy (both in and out of her
chair) for 1 hour every week; group physical education training
4
for 25-30 minutes every week; hygiene instruction, including
toilet training, 3 times a day every day; floor play, at least
twice a day; mobility training for 30 minutes every day; and
recess (where she played both in and out of her chair) for 30
minutes every day. Scheduled activities in which H.H. generally
was to remain seated included: 90 minutes of individual
occupational therapy every 2 weeks; group music training for 20
minutes every week; group library training for 20 minutes every
week; group art training for 20 minutes every week; lunch in the
cafeteria for 30 minutes every day; and classroom group circle
time for an hour every day.
H.H. was assigned to Wanda Moffett’s multi-aged class of
students with severe disabilities at O.B. Gates. Ann Minguzzi
was Moffett’s teacher’s aide that year. According to H.F.,
Moffett displayed hostility towards her and her daughter from
the beginning of the year. Moffett was allegedly especially
resistant to H.H. spending time outside of her wheelchair, even
though H.F. informed Moffett that her daughter hated to be
confined in the wheelchair and was a very active child.
H.F. began to notice that her daughter was becoming
increasingly distressed, anxious, and angry about her
experiences at O.B. Gates. Every day as they approached the
school, H.H. would begin to cry or scream. Often when H.F.
returned to pick H.H. up from school, her daughter would be
5
screaming. H.H.’s time at home after school and on the weekends
was generally “calm and happy” by contrast. (J.A. 371.)
According to H.F., H.H. also began to experience an increasing
number of “grand mal” seizures 1 during the 2005-2006 school year,
to the point where her doctor contemplated performing major
corrective brain surgery.
Based on the changes she noticed in her daughter, H.F.
became suspicious about the kind of treatment H.H. was receiving
at O.B. Gates, so she placed a small recording device on H.H.’s
wheelchair from April 18-20, 2006. 2 According to H.F., the
recordings “establish that H.H. spent most of her time confined
in the wheelchair,” based on the noises H.H. makes throughout
the recordings and based on the proximity of H.H.’s voice to the
microphone. 3 H.F. also claims that the recordings show that H.H.
1
“Grand mal” seizures are ones involving the entire body.
They are characterized by a loss of consciousness and violent
muscle contractions.
2
In the district court, Appellants have challenged the
admissibility of evidence from the recording device as a
violation of the Federal Wiretapping Act, 18 U.S.C. § 2510 et
seq. (2006). For the limited purpose of this appeal, we will
assume admissibility.
3
This Court has been provided with copies of the audio
recordings obtained by H.F.; however, the quality of the
recordings and the amount of environmental noise make it
difficult to hear clearly what transpired. Because this comes
to us on summary judgment, we will assume H.F.’s interpretation
of the recordings.
6
received almost no educational services. 4 Instead, Moffett and
Minguzzi kept H.H. in her chair and ignored her, spending their
time gossiping, making fun of both H.H. and other children in
the school, and conspiring about how to prevent H.H. from
receiving extended school-year services. The audio recordings
allegedly capture adult voices telling H.H. that she is “gross,”
“coddled,” and “has a face only a mother could love.” The
recordings also suggest that Appellants may have been planning
to sabotage an upcoming IEP meeting by instructing other school
employees to say as little as possible at the meeting so that
H.H. would not be offered extended school year services. At one
point, when H.H. screamed or cried to get the adults’ attention,
H.F. claims the audiotape indicates that an adult voice
responded, “HEY! Shut the f--- up!” 5 (J.A. 372.) After hearing
the recordings, H.F. immediately removed H.H. from O.B. Gates.
H.H. has not experienced a “grand mal” seizure since then.
4
At the start of the school year, Moffett’s class had six
children in it, but as the year progressed, some of the students
transferred or left because of illness, leaving only two
students (including H.H.) who regularly attended, and one other
who was on the class roll but was frequently absent. On the
days when the audio recording device was active, H.H. was often
the only child in the classroom.
5
Both Moffett and Minguzzi deny ever making this statement.
The audio recording is rather muffled at this point, and Moffett
suggests that the statement may have been, “[P]ut the stuff up.”
(Appellants’ Reply Br. at 16 n.10.)
7
On April 17, 2007, H.F. filed a complaint in the United
States District Court for the Eastern District of Virginia, on
behalf of her daughter and herself, against Moffett, Minguzzi,
the Chesterfield County School Board (“CCSB”), and
Superintendent of Chesterfield County Schools Marcus Newsome.
The complaint included a claim under 42 U.S.C. § 1983 (2000),
alleging a violation of H.H.’s Fourteenth Amendment rights, as
well as common law claims of intentional infliction of emotional
distress and false imprisonment, and claims of violations of the
Americans with Disabilities Act and the Rehabilitation Act. On
September 7, 2007, Moffett and Minguzzi filed a motion for
summary judgment, in which they asserted that they were entitled
to qualified immunity on Appellees’ § 1983 claim. H.H.
responded with a motion for a continuance pursuant to Federal
Rule of Civil Procedure 56(f) to allow her to obtain additional
discovery to support her opposition to Moffett and Minguzzi’s
motion for summary judgment. Moffett and Minguzzi filed a
motion for a protective order on October 26 to suspend discovery
on grounds of qualified immunity.
After a hearing on the motions, the district court entered
an order granting the plaintiffs’ motion for a continuance under
Rule 56(f), holding Moffett and Minguzzi’s motion for summary
judgment in abeyance until plaintiffs “have completed
discovery,” and denying Moffett and Minguzzi’s motion for a
8
protective order. 6 (J.A. 556.) The district court found that
the parties disputed material facts regarding defendants’
treatment of the plaintiffs that would affect the outcome of the
case, and that much of the relevant evidence was in the control
of defendants. Thus, in the district court’s view, defendants’
motion for summary judgment was “premature” and the court would
defer ruling on it until plaintiffs had “adequate time to
conduct discovery.” (J.A. 551-52.) The district court went on
to find that plaintiffs had alleged “the violation of a
constitutional right . . . [that] was clearly established at the
time of the alleged violation.” (J.A. 553.)
Moffett and Minguzzi now appeal this order, arguing that
the district court did not have the authority to hold their
motion for summary judgment in abeyance because they were
entitled to qualified immunity as a matter of law.
II.
Before we consider the merits of Moffett and Minguzzi’s
appeal, we must first resolve a threshold jurisdictional
6
The district court also granted Newsome’s motion to
dismiss and granted in part and denied in part CCSB’s motion to
dismiss. The court found that CCSB was entitled to sovereign
immunity on Appellees’ state tort claims, but that additional
discovery was needed to determine whether the school board could
be held liable for its employees’ conduct under § 1983.
9
question raised by the Appellees. Appellants claim that we have
jurisdiction to hear this appeal under Mitchell v. Forsyth, 472
U.S. 511 (1985). Appellees counter, however, that a decision to
hold a motion for summary judgment in abeyance is not an
immediately appealable final decision, even under Mitchell.
Section 1291 of Title 28 of the United States Code vests
courts of appeals with “jurisdiction of appeals from all final
decisions of the district courts of the United States.” Denials
of motions for summary judgment are generally not considered
“final decisions” and are therefore not appealable. See Smith
v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th
Cir. 2002). But, in Mitchell, the Supreme Court recognized that
denials of qualified immunity at the summary judgment stage fell
within the scope of the collateral order doctrine and were
properly appealable “final decisions” under 28 U.S.C. § 1291. 7
472 U.S. at 524-30.
7
The collateral order doctrine, as articulated in Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949),
allows for interlocutory review of certain issues within a case
where those issues “finally determine claims of right separable
from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until
the whole case is adjudicated.” Essentially there are three
criteria necessary for Cohen’s collateral order exception to
apply: the order over which review is sought must conclusively
determine the disputed questions; it must be independent of the
merits of the underlying action; and it must regard a claim that
would be effectively unreviewable if appeal was delayed until
(Continued)
10
The Mitchell Court recognized that, because qualified
immunity is “an immunity from suit rather than a mere defense to
liability,” the entitlement “is effectively lost if a case is
erroneously permitted to go to trial.” Id. at 526. Thus a
denial of summary judgment “conclusively determines the
defendant’s claim of right not to stand trial on the plaintiff’s
allegations.” Id. at 527 (emphasis omitted). Moreover, a
qualified immunity determination presents a discrete question of
law -- “whether the legal norms allegedly violated by the
defendant were clearly established at the time of the challenged
actions” –- that does not require the court to “consider the
correctness of the plaintiff’s version of the facts, nor even
determine whether the plaintiff’s allegations actually state a
claim.” Id. at 528.
If Moffett and Minguzzi were appealing an outright denial
of qualified immunity then their appeal would plainly be
reviewable under Mitchell. But here, the district court has
placed Appellants’ motion for summary judgment in abeyance until
plaintiffs “have completed discovery.” (J.A. 556.) Thus,
the termination of district court proceedings. Id. at 546. In
Mitchell, the Court found that a denial of qualified immunity
meets all three of the Cohen collateral order criteria.
Mitchell, 472 U.S. at 524-30.
11
Appellees argue, “the district court never made any sort of
final ruling.” (Appellees’ Br. at 3.)
Whatever the technical merits of this argument, it is
indisputable that the district court has effectively decided the
discrete question of law that is now being appealed –- whether,
under the facts alleged by Appellees, Moffett and Minguzzi have
violated Appellees’ clearly established constitutional rights.
In its Memorandum Opinion, the district court says plainly that
it has “determined that plaintiff’s complaint does allege the
violation of a constitutional right, and that the right was
clearly established at the time of the alleged violation.”
(J.A. 553.) The district court only placed the motion for
summary judgment in abeyance so that Appellees could take
additional discovery in order to demonstrate that, as a factual
matter, Moffett and Minguzzi had violated their constitutional
rights.
Allowing Appellees to now force Moffett and Minguzzi into
discovery, without recourse to appeal the district court’s legal
finding, would contravene the spirit of the Supreme Court’s
decision in Mitchell. Mitchell underscored that “even such
pretrial matters as discovery are to be avoided if possible.”
472 U.S. at 526. “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
12
commencement of discovery.” 8 Id. (emphasis added); see also
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other
grounds by Pearson v. Callahan,
129 S. Ct. 808 (2009) (“[W]e
repeatedly have stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.”
(internal citation and quotations omitted)); Harlow v.
Fitzgerald,
457 U.S. 800, 818 (1982) (“Until this threshold
immunity question is resolved, discovery should not be
allowed.”); cf. Johnson v. Jones,
515 U.S. 304, 313 (1995)
(limiting Mitchell to allow only qualified immunity appeals that
are based on a claim that the judge, taking the facts as given,
erred as a matter of law in finding a violation of clearly
established law); Winfield v. Bass,
106 F.3d 525, 529-30 (4th
Cir. 1997) (en banc) (same).
8
Appellees observe that, even if qualified immunity
protects Moffett and Minguzzi from the § 1983 claim, it is no
defense to Appellees’ state law claims of intentional infliction
of emotional distress and false imprisonment. Thus, Appellees
argue that a ruling on the qualified immunity issue would be
premature “[b]ecause the burden of discovery will fall on the
government and its agents no matter what the outcome of the
qualified immunity question.” (Appellees’ Br. at 48.) In
Behrens v. Pelletier, 516 U.S. 299, 312 (1996), the Supreme
Court rejected just such an argument, noting that the “right to
[qualified] immunity is a right to immunity from certain claims,
not from litigation in general; when immunity with respect to
those claims has been finally denied, appeal must be available,
and cannot be foreclosed by the mere addition of other claims to
the suit.”
13
Several of our sister circuits have found that similar
deferrals of decision on an immunity claim were immediately
appealable. In X-Men Security, Inc. v. Pataki, 196 F.3d 56, 64,
67 (2d Cir. 1999), for example, the Second Circuit determined
that it had jurisdiction to review a district court’s rejection
of the defendant’s claim of qualified immunity which was found
to be “premature in advance of discovery.” The court explained:
Where the district court bases its refusal to
grant a qualified-immunity motion on the premise that
the court is unable to, or prefers not to, determine
the motion without discovery into the alleged facts,
that refusal constitutes at least an implicit decision
that the complaint alleges a constitutional claim on
which relief can be granted. That purely legal
decision does not turn on whether the plaintiff can in
fact elicit any evidence to support his allegations;
it thus possesses the requisite finality for immediate
appealability under the collateral order doctrine.
. . . A district court’s perceived need for discovery
does not impede immediate appellate review of the
legal questions of whether there is a constitutional
right at all and, if so, whether it was clearly
established at the time of the alleged conduct . . . .
Id. at 66-67; see also Summers v. Leis, 368 F.3d 881, 887 (6th
Cir. 2004) (“This Court finds that the district court’s refusal
to address the merits of the defendant’s motion asserting
qualified immunity constitutes a conclusive determination for
the purposes of allowing an interlocutory appeal.”); cf. Wicks
v. Miss. State Employment Servs.,
41 F.3d 991, 995 (5th Cir.
1995) (reversing a district court’s denial of a protective order
intended to prevent discovery prior to consideration of a
14
defendant’s motion to dismiss on qualified immunity grounds);
Valiente v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992) (finding
immediately appealable a district court’s refusal to entertain a
qualified immunity claim on summary judgment); Smith v. Reagan,
841 F.2d 28, 31 (2d Cir. 1988) (“By holding the decision [on the
State’s Eleventh Amendment immunity motion] in abeyance pending
the completion of all discovery in the case, the district court
effectively denied that right.”).
Here the district court plainly decided that, as a matter
of law, Moffett and Minguzzi’s alleged conduct violated
Appellees’ clearly established constitutional rights. The fact
that this decision was made in the context of placing Moffett
and Minguzzi’s motion for summary judgment in abeyance does not
place it outside the realm of the collateral order doctrine. We
find, therefore, that we have jurisdiction to review this
discrete question of law.
III.
Turning now to the merits of the appeal, Appellants are
entitled to qualified immunity if they can show that they have
not violated Appellees’ clearly established constitutional
rights. Harlow, 457 U.S. at 818. Appellees argue that Moffett
and Minguzzi violated H.H.’s clearly established substantive due
process right to freedom from undue restraint by keeping her
15
physically restrained in her wheelchair for hours at a time. We
agree inasmuch as the facts alleged by Appellees create a
reasonable inference that the Appellants’ conduct was motivated
by malice.
We have long recognized that “‘[liberty] from bodily
restraint . . . [lies at] the core of the liberty protected by
the Due Process Clause [of the Fourteenth Amendment].’”
Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (quoting Greenholtz
v. Nebraska Penal Inmates,
442 U.S. 1, 18 (1979) (Powell, J.,
concurring in part and dissenting in part)). Because restraint
cases require us to balance an individual’s liberty interest
against a state interest in using the restraint, “[t]he question
. . . is not simply whether a liberty interest has been
infringed but whether the extent or nature of the restraint
. . . is such as to violate due process.” Id. at 320. In
Youngberg, for example, we found that a state mental institution
could “not restrain residents except when and to the extent
professional judgment deems this necessary . . . .” Id. at 324.
In this case, conceivable legitimate justifications exist
for keeping H.H. strapped into her wheelchair. It is undisputed
that, because of her disabilities, H.H. could not be seated
16
safely in her chair without the use of some sort of restraint. 9
Furthermore, during the course of a normal school day, H.H.
would often need to be seated while being instructed. However,
on Appellees’ facts, it was not educational or safety concerns
that motivated Appellants’ conduct. Nor even was it merely
laziness or incompetence. Instead, Appellees suggest that
Appellants made the decision to keep H.H. restrained “for long
periods of time . . . . with malice . . . [and] with callous and
deliberate indifference toward the rights of H.H.” 10 (J.A. 19.)
Appellees have supported these allegations with evidence of
Appellants’ animus, namely their early hostility towards H.H.,
their cruel and verbally abusive remarks to the child, and their
comments suggesting that they were conspiring to prevent from
her getting educational services to which she might otherwise
have been entitled. Appellees’ allegations are all the more
concerning given H.H.’s limited ability to communicate verbally,
9
H.H.’s wheelchair is equipped with a lap belt for just
this reason. H.H.’s other seating option in her classroom was a
Rifton chair -- a chair adapted especially to provide extra
upper body support to children with severe disabilities. The
chair employs a belt system to keep a disabled child upright and
also comes with a tray attachment. (See J.A. 307.)
10
We need make no judgment as to whether H.H.’s substantive
due process rights would be implicated if Appellants had acted
out of laziness or incompetence because Appellees have alleged
that Appellants acted out of malice.
17
meaning that she could neither report nor reject the Appellants’
conduct.
Where the use of a restraint is “so inspired by malice
. . . that it amount[s] to a brutal and inhumane abuse of
official power literally shocking to the conscience,” we cannot
but find that it violates an individual’s substantive due
process rights. Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.
1980) (emphasis added). Here, if Moffett and Minguzzi were
physically restraining H.H. for hours on end, and using that
time to verbally abuse her and strategize against her, that
behavior certainly shocks the conscience. In such
circumstances, we also must conclude that Appellants violated
clearly established law, as a reasonable teacher would plainly
recognize that maliciously restraining a child for long periods
of time was unlawful. See Jefferson v. Ysleta Independent
School District,
817 F.2d 303 (5th Cir. 1987) (affirming denial
of qualified immunity where teacher tied an eight-year-old child
to her chair with a jump rope for almost two full school days);
cf. Heidemann v. Rother,
84 F.3d 1021, 1029 (8th Cir. 1996)
(granting qualified immunity where teachers used a blanket
restraint on a developmentally disabled child at the direction
of a physical therapist).
The dissent would find Moffett and Minguzzi entitled to
qualified immunity because “we have not found any case that
18
holds that a teacher, who straps a disabled child in her
wheelchair in the classroom, violates the child’s constitutional
right to be free from restraint.” (Diss. Op. at 1-2). Yet we
need not identify a case that is “factually on all-fours” in
order to find that a clearly established right has been
violated. Jefferson, 817 F.2d at 305; see also Hope v. Pelzer,
536 U.S. 730, 739 (2002). Rather, “[f]or a constitutional right
to be clearly established, its contours ‘must be sufficiently
clear that a reasonable official would understand that what he
is doing violates that right.’” Hope, 536 U.S. at 739 (quoting
Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
We have little difficulty finding that a reasonable teacher
would know that maliciously restraining a child in her chair for
hours at a time interferes with that child’s constitutional
liberty interests. In Jefferson, the court found that, where
plaintiffs alleged that a teacher had tied an eight-year-old
student to a chair with a jump rope for an entire school day,
the teacher was not entitled to a defense of qualified immunity.
817 F.2d 303. The use of the jump rope restraint was found to
violate the child’s right to freedom from undue bodily restraint
even though it was supposedly being employed “as part of an
instructional technique imposed by school policy.” Id. at 304.
Jefferson thus reinforced the point made in Hall: even where a
teacher may have a conceivably permissible justification for use
19
of a restraint, her actions will not be protected by qualified
immunity when they amount to an “abuse of official power
literally shocking to the conscience.” Hall, 621 F.2d at 613.
The Eighth Circuit’s decision in Heidemann is not to the
contrary. In that case, a disabled child’s special education
teachers received qualified immunity for their use of a blanket
restraint because the court found that the restraint was
employed at the advice of a licensed physical therapist under
contract with the school. Heidemann, 84 F.3d at 1029. The
facts of Heidemann are a far cry from the “abuse of official
power,” Hall, 621 F.2d at 613, that is alleged here.
We stress that Appellees’ facts make this an unusual case,
and our opinion is one that no reasonable teacher who errs in
judgment ought to fear. Qualified immunity is intended to
protect officials who make reasonable mistakes about the law.
Saucier, 533 U.S. at 206. But the immunity simply does not
extend protection to an official motivated by the kind of bad
faith alleged here. 11
11
Today’s opinion does not, as the dissent worries,
“creat[e] a right of public school children either to be
instructed or to be free to roam the classroom as they wish.”
(Diss. Op. at 6.) It simply recognizes that a teacher who
maliciously employs physical restraints to keep a student in her
seat for long periods of time violates that child’s clearly
established constitutional rights.
20
IV.
This appeal came to us as a challenge to the district
court’s decision to hold Appellants’ motion for summary judgment
in abeyance, grant the Appellees’ motion for a Rule 56(f)
continuance, and deny the Appellants’ motion for a protective
order. The Appellants have argued that they were entitled to
qualified immunity and that we should accordingly reverse these
three rulings. Because we have found that, on the facts taken
in the light most favorable to Appellees, the Appellants are not
entitled to qualified immunity as a matter of law, and because
Appellants have raised no other question of error on the part of
the district court, we affirm and remand to the district court
for further proceedings consistent with this opinion.
AFFIRMED AND REMANDED
21
NIEMEYER, Circuit Judge, dissenting:
H.H., a severely disabled seven-year old girl -– she can
neither walk nor talk -– and her mother commenced this action
against two public school teachers for strapping H.H. into a
wheelchair for too extensive a time, even though strapping H.H.
into the chair was necessary to enable her to sit up in her
chair. As the majority notes, “It is undisputed that, because
of her disability, H.H. could not be seated safely in her chair
without the use of some sort of restraint.” While the
educational undertaking, and indeed her Individual Education
Plan, required that H.H. be strapped in her chair for most of
the school day, H.H.’s mother contends that the teachers
strapped her in too long in furtherance of their own convenience
and that the teachers maliciously mocked the child’s disability
while she was in her chair. Based on these allegations, H.H.
and her mother contend that the teachers violated H.H.’s
constitutional right to be free from undue restraint.
The teachers contend that H.H. and her mother have not
alleged a violation of a constitutional right, much less a well-
established constitutional right of which they should have been
aware. Accordingly, they claim that the complaint should be
dismissed, based on their qualified immunity, and I agree.
22
To begin with, we have not found any case that holds that a
teacher, who straps a disabled child in her wheelchair in the
classroom, violates the child’s constitutional right to be free
from restraint, even if the child is strapped in her chair a few
hours longer than anticipated by the educational program and
even if the restraint is imposed for improper motives. Any
assumption that such a constitutional right exists as a well
established right so that a reasonable teacher would know that
she is violating the constitution has no basis in any Supreme
Court case or Fourth Circuit case. Indeed, the closest case
decided in our circuit involved a claim that police officers,
who handcuffed a prisoner to a light pole in the middle of a
deserted parking lot and left the prisoner there for hours until
the police officers from another county could pick the prisoner
up, violated the prisoner’s constitutional rights. See Robles
v. Prince George’s County, Md., 302 F.3d 262 (4th Cir. 2002).
In that case, we held that the police officers did not violate a
well-established constitutional right. Id. at 270.
The most analogous decision we could find is the Eighth
Circuit’s decision in Heidemann v. Rother, 84 F.3d 1021 (8th
Cir. 1996), where the plaintiff, a nine-year old nonverbal child
with severe mental and physical disabilities, claimed her
teachers violated her constitutional rights when they used a
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therapeutic treatment referred to as “blanket wrapping.” Under
the procedure, the child was bound with a blanket so that she
could not use her arms, legs, or hands for hours at a time.
Despite the fact that the plaintiff alleged that the “blanket
wrapping was used as a means of physical restraint . . . [and]
that it was administered as a substitute for educational and
habilitative programming merely for defendants’ convenience,”
id. at 1026, the Eighth Circuit held that the teachers’ conduct
did not amount to a constitutional violation and that the
teachers were entitled to qualified immunity. The court
concluded that “even if the blanket wrapping treatment did
constitute a substantial departure from professional norms, . .
. a reasonable official would not have known that to be true.”
Id. at 1029.
H.H. and her mother have struggled both in their briefs and
at oral argument to define a precise constitutional right that
the teachers in this case allegedly violated. Ultimately they
settled on the teachers’ “purposeless physical restraint” of
H.H. in her chair, contending that it violated H.H.’s right to
be free from unjustified bodily restraint, as protected by the
Due Process Clause of the Fourteenth Amendment. They argued
that the teachers violated H.H.’s protected liberty interest by
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keeping her “unnecessarily strapped and restrained in her
wheelchair for hours at a time.”
On the record in this case, however, I simply cannot
understand how one can contend that the physical restraint of
H.H. was “purposeless.” The lap belt on H.H.’s chair had a very
clear purpose, as her mother recognized, because H.H. could not
be seated safely in her chair without being strapped in it.
When we take the lap belt itself out of the calculus, we are
left with a claim that keeping H.H. in her chair “for hours at a
time” without instruction was in effect a purposeless and a
constitutionally violative governmental restraint. Stated
otherwise, H.H. and her mother must, of necessity, be contending
that H.H. had a constitutional right to be instructed or to be
out of her wheelchair. But school children are routinely
required to sit in their chairs “hours at a time,” at the sole
judgment of the teacher. Surely if a teacher required a
classroom of students to be seated for a full school day because
the teacher did not wish to teach the students or to interact
with them, she would not be depriving the students of
constitutionally protected liberty. I therefore, cannot
understand how H.H. and her mother can claim a constitutional
right for H.H. not to be kept in her chair for hours at a time
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when similarly situated non-disabled children do not have such a
right.
By denying the teachers in this case qualified immunity,
the majority seems to insist (1) that the teachers should have
knowledge of some constitutional right that has not yet been
defined by the Supreme Court or by the Fourth Circuit, and (2)
that the teachers deliberately violated that constitutional
right. Qualified immunity protects public school teachers “from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable [school teacher] would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). And the
“relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable
[school teacher] that [her] conduct was unlawful in the
situation [she] confronted.” Saucier v. Katz,
533 U.S. 194, 202
(2001) (emphasis added) (citing Wilson v. Layne,
526 U.S. 603,
615 (1999) (“[A]s we explained in Anderson, the right allegedly
violated must be defined at the appropriate level of specificity
before a court can determine if it was clearly established”
(emphasis added))).
Neither the plaintiffs nor the majority have identified any
case that would instruct the teachers in this case that their
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conduct, even if improperly motivated, violated H.H.’s
constitutional rights. The closest they come is a single,
factually distinguishable case out of the Fifth Circuit, in
which a teacher punished a nine-year old child by tying her to a
chair with a jump rope for almost two school days, not allowing
her even to use the restroom. See Jefferson v. Ysleta Indep.
Sch. Dist., 817 F.2d 303, 304-5 (5th Cir. 1987). Of course, the
jump rope was not required for any safety consideration, as
here, but rather was used to punish the child. Id.
In sum, the majority seems to be creating a right of public
school children either to be instructed or to be free to roam
the classroom as they wish. While H.H. and her mother may have
claims for alleged failures to educate H.H. properly, they
should not be allowed to morph those claims into constitutional
claims against teachers in their personal capacity. I submit
that the implication of the majority’s holding, which plows
entirely new ground, is far-reaching and leaves public school
teachers exposed to constitutional claims in circumstances where
they may have simply exercised poor judgment, even for
unacceptable reasons. Because we erroneously deny these school
teachers qualified immunity, I dissent.
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