NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0304n.06
                                                                                              FILED
                                             No. 10-6240
                                                                                         Mar 20, 2012
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


Samuel Whitson and Tina Whitson, next friends of           )
Luke Whitson,                                              )
                                                           )         ON APPEAL FROM THE
       Plaintiffs-Appellants,                              )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE EASTERN
v.                                                         )         DISTRICT OF TENNESSEE
                                                           )
Knox County Board of Education and Charles                 )                            OPINION
Lindsey, in his official capacity as Superintendent        )
of Knox County Public School System, Cathy                 )
Summa, in her official capacity as Principal of            )
Karns Elementary School                                    )
                                                           )
       Defendants-Appellees.                               )



BEFORE:        COOK, McKEAGUE, and ROTH,* Circuit Judges.

       McKeague, Circuit Judge. L.W., a minor represented by his parents in this action

(“Plaintiff”), claims that his First Amendment right to Freedom of Speech was violated by a policy

of the Knox County Board of Education because he got the impression from another fourth grader

that he could not participate in a student-led Bible study during recess. The district court held a jury

trial on Plaintiff’s claims and Defendants prevailed. On appeal, Plaintiff brings several claims of

error. Because any error on the part of the district court was harmless and did not prejudice the

outcome of the trial, we affirm.



       *
       The Honorable Jane R. Roth, United States Circuit Judge for the United States Court of
Appeals for the Third Circuit, sitting by designation.
No. 10-6240
Whitson v. Knox County Board of Education

                                         I. BACKGROUND

        Plaintiff was a fourth-grade student who attended Karns Elementary School (KES), a school

under the supervision of the Knox County Board of Education, Superintendent Charles Lindsey, and

Principal Cathy Summa (collectively “Defendants”). During the 2004–2005 school year, Plaintiff

began meeting with other fourth graders during recess to read and discuss the Bible. After a parent

called Plaintiff’s teacher, Virginia LaRue (“LaRue”), and complained about the meetings, LaRue

instructed the leader of the meetings, a minor referred to as D.S., not to have the meeting that day.

LaRue wanted Principal Cathy Summa (“Principal Summa”) to determine whether the meetings were

permissible. Principal Summa told LaRue that “organized Bible study” during recess was not

permitted. LaRue then told D.S. that the Bible study had to stop. D.S. testified that, in a later

conversation with D.S. and two other students, Principal Summa gave D.S. the impression that they

could no longer have the Bible study during recess. LaRue testified that, despite this, students

continued to read and discuss the Bible during recess. There was also testimony at trial that, after

this suit was initiated, the Board of Education promulgated a policy stating that “students and

employees can engage in expression of personal religious views or beliefs within the parameters of

current law.”

        Following D.S.’s conversation with Principal Summa, D.S.’s father, the Reverend Chad

Sparks (“Rev. Sparks”), met with Principal Summa to discuss why she stopped the Bible study. Rev.

Sparks testified that Principal Summa told him she was worried about the separation of church and

state, and that she was not sure what the School Board’s policy was on having a Bible study.

Plaintiff testified that he wanted to continue the Bible study but feared getting in trouble. But he also

                                                  -2-
No. 10-6240
Whitson v. Knox County Board of Education

testified that he did not know of any other students getting into trouble for reading the Bible during

recess. Despite his interest in continuing the Bible study, Plaintiff did not talk to Principal Summa

or any of his other teachers about the Bible study. Plaintiff’s parents also did not discuss the Bible

study stoppage with Principal Summa or any other school officials, although Plaintiff’s mother tried

to speak with Principal Summa on two occasions, but was told that Principal Summa was

unavailable. Plaintiff’s parents did not attempt to discuss the Bible study with the School Board or

the Superintendent.

       On May 9, 2005, Plaintiff sent a letter through his attorney addressed “Dear Sir or Madam”

to the Superintendent and the School Board stating that the ban on the Bible study violated Plaintiff’s

constitutional rights, and asking the Board to change its policy. A few days later, the news media

began reporting about the Bible study stoppage, allegedly mischaracterizing Principal Summa’s

actions. Then Principal Summa issued a letter to parents at KES on May 12, 2005, stating that she

told students and a parent “that children could not have a Bible study class during the school day.”

The next day, the County issued a press release to manage the media blitz. The press release was

approved by Superintendent Lindsey, the President of the School Board, and Principal Summa. The

press release attributes the following quote to Principal Summa:

       I indicated to the students and the parents that I did not feel that an organized activity
       of this type was appropriate during the school day. . . . While we do not discourage
       students from reading at recess, I think that a daily planned activity that is stationary
       or physically static in nature defeats the real purpose of recess. The purpose is to
       give students an opportunity to have some physical activity during the school day.

Principal Summa testified that, at KES, recess is used to replace physical education on some days

of the week because the school lacks the capacity to provide physical education class for every

                                                 -3-
No. 10-6240
Whitson v. Knox County Board of Education

student every day. Following the press release, a series of newspaper interviews quoted school

officials stating that Board policy precluded children from reading Bibles and engaging in Bible

studies during instructional time, such as recess, and instead stated that Bible reading should occur

during free time, such as before or after school. The articles also quoted officials reiterating that the

goal of recess is physical activity, which would be undermined by an organized daily Bible study.

        On June 1, 2005, Plaintiff brought suit in the district court seeking injunctive and declaratory

relief as well as unspecified damages against the Board, Superintendent Lindsey in his official

capacity, and Principal Summa in both her individual and official capacities.1 The Board, Lindsey,

and Principal Summa (in her official capacity) filed an answer that did not demand a jury trial.

Principal Summa filed a separate answer in her individual capacity asserting a counterclaim against

Plaintiff for slander, and she demanded a jury trial. After completing discovery, the parties filed

cross-motions for summary judgment. In her pleading, Principal Summa claimed the affirmative

defense of qualified immunity. The district court denied all motions. Principal Summa filed a notice

of appeal. On May 25, 2007, the parties filed a stipulation agreeing that Principal Summa acted in




        1
        We note that Plaintiff’s complaint does not appear to comport with Federal Rule of Civil
Procedure 11(b). During trial, L.W.’s parents admitted they had no personal knowledge of Principal
Summa interrupting recess Bible study, and that they had based their complaint on statements their
son had told them—statements which the parents believed their son had heard from another fourth
grader. The complaint should not have been filed based on such scant evidentiary support. See Fed.
R. Civ. P. 11(b)(3). Even though the complaint was also supported by Defendants’ statements
during the media frenzy caused by Plaintiff’s counsel’s demand letter, counsel’s actions fall
markedly short of the decorum we expect from advocates. Although we decline to issue appellate
sanctions because errors in the district court established a minimal basis for appeal, we would be
remiss to ignore these abuses by Plaintiff’s counsel.

                                                  -4-
No. 10-6240
Whitson v. Knox County Board of Education

her official capacity at all relevant times, and the case against her in her personal capacity was

dismissed.

        After the case returned to the district court for trial on Plaintiff’s claim for prospective relief

and nominal damages, it was set for jury trial, which Plaintiff disputed. The district court denied

Plaintiff’s motion for a bench trial. The court further denied Plaintiff’s motion for reconsideration

on this point, as well as Plaintiff’s motion to designate the jury as advisory.

        Trial took place on October 27–28, 2009. During the trial, Plaintiff filed three additional

motions that are relevant to this appeal. First, Plaintiff filed a motion in limine to exclude testimony

by Rev. Sparks regarding a conversation he had with Principal Summa after the media blitz had

begun. Second, Plaintiff requested a jury instruction that Plaintiffs were not required to exhaust

administrative remedies before filing a § 1983 claim. Upon conclusion of the trial, the jury returned

a verdict that Defendants had not violated Plaintiff’s constitutional rights. Finally, Plaintiff filed a

motion for judgment notwithstanding the verdict and for a new trial. The district court denied all

of these requests. This appeal followed.

                                            II. ANALYSIS

        42 U.S.C. § 1983 provides a right of action against every “person who, under color of [law]

. . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws . . . .” Local governments are

considered “persons” under § 1983 and may be sued for constitutional deprivations visited pursuant

to a policy, practice, custom, or procedure. Monell v. Dep’t. of Social Servs. of N.Y., 

,

690 (1978). Likewise, an official may be sued in his or her official capacity for such a deprivation.

                                                   -5-
No. 10-6240
Whitson v. Knox County Board of Education

n.55. The district court submitted to the jury factual issues as to (1) whether Defendants

deprived Plaintiff of his rights; and (2) if such deprivation occurred, whether it was done pursuant

to a policy, practice, custom, or procedure.2 The jury found that Defendants did not deprive Plaintiff

of his rights, and so it did not need to decide the second issue regarding the existence of a policy,

practice, custom, or procedure. Although we conclude that the district court made some errors along

the way, we see no reason to disturb the jury’s verdict.

A. Denial of Motions for Bench Trial or Advisory Jury

       Plaintiff contends that the district court erred in choosing not to grant his motions for a bench

trial. The district court’s decisions to deny Plaintiff’s motions for a bench trial are reviewed for

abuse of discretion. Hildebrand v. Bd. of Trs. of Mich. State Univ., 

, 711 (6th Cir.

1979). The Seventh Amendment preserves the right to a jury trial “[i]n Suits at common law, where

the value in controversy shall exceed twenty dollars . . . .” U.S. Const. amend. VII. The right is



       2
          In sending these issues to the jury, the district court determined that, if Principal Summa
prevented Plaintiff from organizing student Bible study during recess, that action would constitute
a deprivation of Plaintiff’s First Amendment rights. On appeal, neither party disputes this baseline
determination. Of course, the First Amendment protects student expression within schools. Tinker
v. Des Moines Indep. Cmty. Sch. Dist., 

, 506 (1969). Nonetheless, the law of this
Circuit does not necessarily support the conclusion that preventing an elementary-age student from
organizing student Bible study would violate his or her First Amendment rights. Cf. M.A.L. v.
Kinsland, 

, 846–47 (6th Cir. 2008) (finding a reasonable time, place, and manner
restriction where a student was prevented from distributing literature about abortion in the hallways
between classes but was allowed to post such literature on bulletin boards instead). In adjudicating
the claims before us, we express no opinion as to the underlying constitutionality of a school’s
restriction on elementary student Bible study during recess. However, we take note that Plaintiff’s
counsel failed to acknowledge that he was asking the district court to extend existing law. Cf. Fed.
R. Civ. P. 11(b)(2) (stating that an attorney signing a pleading certifies that the claims therein are
supported by “a nonfrivolous argument for extending . . . existing law”).

                                                 -6-
No. 10-6240
Whitson v. Knox County Board of Education

preserved only in suits where legal—as opposed to equitable—rights are adjudicated. Chauffeurs,

Teamsters & Helpers, Local 391 v. Terry, 

, 565 (1990). A party may demand a jury

trial “[o]n any issue triable of right.” Fed. R. Civ. P. 38(b). Once a demand for a jury trial of right

is properly made, “the action must be designated on the docket as a jury action.” Fed. R. Civ. P.

39(a). But neither the Seventh Amendment, nor any other provision of the Constitution, preserves

any right to a bench trial. Beacon Theatres, Inc. v. Westover, 

, 510 (1959).

        Plaintiff initially sought compensatory damages in an amount to be determined by the court,

which triggered Principal Summa’s Seventh Amendment rights. See U.S. Const. amend. VII. But

the right to a jury trial does not depend only on the initial pleadings. See 

–10. When subsequent events leave only equitable issues to be resolved, the right to a jury trial

does not exist and is not preserved by the Seventh Amendment or Federal Rule of Civil Procedure

38. See id.; see also Wall v. Trust Co. of Ga., 

, 809 (11th Cir. 1991) (holding that no

right to a jury trial existed after one of the plaintiff’s claims was dismissed, leaving only an equitable

claim). So, the dismissal of Principal Summa’s counterclaim and Plaintiff’s removal of his prayer

for compensatory damages eliminated Defendants’ right to trial by jury.

        In denying Plaintiff’s motions for a bench trial or advisory jury, the district court reasoned

that, because Principal Summa timely and properly demanded a jury trial in her answer, that demand

could only be withdrawn with the consent of all parties pursuant to Federal Rule of Civil Procedure

38(d). Since Defendants objected to Plaintiff’s motions for a bench trial, the trial court determined

that Defendants had not consented, and the case had to be tried by a jury. But the official comments

to Rule 38 make it clear that the Rule applies only to cases in which there is a Seventh Amendment

                                                  -7-
No. 10-6240
Whitson v. Knox County Board of Education

right to a jury. See Fed. R. Civ. P. 38 (comment) (stating that the Rule “provides for the preservation

of the constitutional right of trial by jury”). It follows that the district court was incorrect in

concluding that, without Defendants’ consent, it did not have discretion to conduct a bench trial. Not

only did the court have discretion to conduct a bench trial, that is what the court should have done.

        Federal Rule of Civil Procedure 39(c)(2) provides: “In an action not triable of right by a jury,

the court, on motion or on its own . . . may, with the parties’ consent, try any issue by a jury whose

verdict has the same effect as if a jury trial had been a matter of right.” Fed. R. Civ. P. 39(c)(2)

(emphasis added). Because this action was “not triable of right by a jury” the court needed Plaintiff’s

consent to send the case to a jury; clearly the court lacked that consent. The court should have, at

a minimum, granted Plaintiff’s motion to limit the jury to an advisory role. See Fed. R. Civ. P.

39(c)(1) (stating: “In an action not triable of right by a jury, the court, on motion or on its own . . .

may try any issue with an advisory jury.”).

        Nonetheless, Plaintiff is entitled to a new trial only if he was prejudiced by the court’s error.

Generally, a non-constitutional trial error is harmless “unless it is more probable than not that the

error materially affected the verdict.” United States v. Fountain, 

, 668 (6th Cir. 1993),

overruled on other grounds as recognized in Trepel v. Roadway Exp., Inc., 

, 717 (6th

Cir. 1999). Plaintiff has no constitutional right to a bench trial. Beacon Theatres, 

. To determine harmlessness, the Court examines “the entire record to see if the [alleged error]

tended to prejudice the [party].” United States v. Wiedyk, 

, 607 (6th Cir. 1995).

Prejudice exists only where there is a substantial risk that the outcome of the trial was affected.

Stockman v. Oakcrest Dental Ctr., P.C., 

, 799 (6th Cir. 2007).

                                                  -8-
No. 10-6240
Whitson v. Knox County Board of Education

       Plaintiff fails to explain why the trial judge was in any better position to determine the factual

issues presented than the jury. Moreover, the record supplies no reason to believe that the outcome

of this case would have been different if the case would have been tried in a bench trial. Therefore,

we conclude that the error was harmless.

B. Admission of Hearsay Evidence

       Prior to trial, Plaintiff filed a motion in limine to prevent Rev. Sparks from testifying about

his conversations with Principal Summa. Plaintiff contended that Sparks’ testimony was “improper

lay opinion, inadmissible hearsay, irrelevant, and prejudicial.” The district court denied the motion

in limine and instructed Plaintiff’s counsel to object at trial, saying it would make “rulings at that

time.” At trial, Plaintiff’s counsel objected to certain portions of Rev. Sparks’ testimony, including

his testimony about statements Principal Summa made to him regarding her understanding of the

Bible study stoppage during their first conversation. The district court directed Rev. Sparks not to

“say what somebody else said, unless it’s a party.” Plaintiff’s counsel objected to that instruction,

but the court stopped the objection, saying “Let’s not get into all this legalism.” Plaintiff did not

renew his objection when the testimony turned to Principal Summa and Rev. Sparks’ subsequent

conversation. Rev. Sparks was allowed to testify that, during his subsequent conversation with

Principal Summa, he realized that the whole situation had been a misunderstanding because Summa

told him that she thought the students wanted to have a Bible study “class.”

       After trial, the district court issued an opinion stating that Rev. Sparks’ testimony was

properly admitted under Federal Rule of Evidence 801(d)(1)(B) because the declarant (Principal

Summa) testified at trial and was subject to cross examination, the statements were consistent with

                                                 -9-
No. 10-6240
Whitson v. Knox County Board of Education

Principal Summa’s testimony at trial, and her statements were offered to rebut a charge of recent

fabrication.

       Because Plaintiff failed to renew his objection to this testimony during trial, we review the

decision for plain error. Fed. R. Evid. 103(d); see also Maday v. Pub. Libraries of Saginaw, 

, 820 (6th Cir. 2007). To establish plain error, Plaintiff must show that there is “(1) error,

(2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 

,

466–67 (1997) (internal quotations and markings omitted). When all three conditions are met, the

Court “may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” 

(internal

quotations and markings omitted).

       Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Fed.

R. Evid. 801(c). A statement may be hearsay in one context but not in another, depending on the

purpose for which it is offered. See United States v. Pulley, 

, 1288 (6th Cir. 1991).

Defendants offered Rev. Sparks’ testimony about Principal Summa’s statements in order to

corroborate Principal Summa’s contention that she misunderstood the situation, believing that the

students wanted a Bible study class, and was not acting pursuant to a policy against Bible study

during recess. The district court determined that the purpose of her prior consistent statement was

to rebut a charge of recent fabrication.

       The district court reasoned that the testimony was excluded from the hearsay rule pursuant

to Federal Rule of Evidence 801(d)(1)(B), which states:



                                                 - 10 -
No. 10-6240
Whitson v. Knox County Board of Education

       A statement that meets the following conditions is not hearsay. . . [t]he declarant
       testifies and is subject to cross-examination about a prior statement, and the
       statement . . . is consistent with the declarant’s testimony and is offered to rebut an
       express or implied charge that the declarant recently fabricated it or acted from a
       recent improper influence or motive in so testifying . . . .

Fed. R. Evid. 801(d)(1)(B). In addition to the four requirements stated in the rule, 801(d)(1)(B) also

carries with it the common-law requirement that the prior consistent statement was made before the

improper motive arose. Tome v. United States, 

, 156 (1995). A district court must

determine when the improper motive arose. Cox v. Treadway, 

, 239 (6th Cir. 1996). A

district court’s failure to make this determination constitutes error. United States v. Larkins, 261 F.

App’x 854, 856 (6th Cir. 2008).

       The district court never stated any finding about when Principal Summa’s motive to fabricate

arose. The court listed all of the requirements set out in 801(d)(1)(B), but failed to mention the

pre-motive requirement, indicating that it was overlooked. This constitutes error. See Larkins, 261

F. App’x at 856.

       Had the district court made this determination, it likely would have found that Principal

Summa’s motive to fabricate arose before she made the challenged statements to Rev. Sparks. By

the time Principal Summa made these statements, she had already received a letter from Plaintiff’s

counsel containing allegations that Principal Summa had stopped a Bible discussion among students

at recess. She had also already sent out a letter to the parents of students at KES stating that the

allegations made against her in the media were false. Because Principal Summa’s statements were

made after her motive to fabricate arose, Rev. Sparks’ testimony repeating those statements was



                                                - 11 -
No. 10-6240
Whitson v. Knox County Board of Education

inadmissible hearsay. As a result, those statements should have been excluded. See 

.

          But this mistake will not constitute plain error if it did not affect substantial rights. See Fed.

R. Evid. 103(d). Such is the case here. Defendants submitted Principal Summa’s statements about

a misunderstanding as evidence that there was not a policy, practice, custom, or procedure that

caused the Bible study stoppage. But the jury rendered a verdict that Defendants did not violate

Plaintiff’s constitutional rights (i.e. trial issue one). That verdict was dispositive. So, the jury did

not need to consider whether the alleged actions were taken pursuant to a policy, practice, custom,

or procedure (i.e. trial issue two). Therefore, the erroneously admitted hearsay testimony had no

effect on the outcome of the trial, and so it was harmless.

C. Denial of Jury Instruction on Exhaustion of Administrative Remedies

          Plaintiff also contests the district court’s denial of his request for a jury instruction that he

was not required to exhaust administrative remedies prior to filing suit. The refusal to give a

specifically requested jury instruction is reviewed for abuse of discretion. Micrel v. TRW, Inc., 

, 881 (6th Cir. 2007). Such a refusal will result in reversible error if the jury instructions,

taken in their entirety, “were confusing, misleading, or prejudicial.” Hisrich v. Volvo Cars of N. Am.,

Inc., 

, 449 (6th Cir. 2000) (internal citation omitted).

          The jury heard evidence that Plaintiff had not pursued administrative remedies. For example,

Plaintiff points out that, on cross examination of Plaintiff’s mother, Defendants elicited testimony

that, although she discussed previous issues involving her other children with school administrators,

she tried to talk to Principal Summa only twice and failed to express the importance of this particular

                                                   - 12 -
No. 10-6240
Whitson v. Knox County Board of Education

matter to Principal Summa. Defendants also prompted Plaintiff’s father to testify that he made no

effort to discuss the issue with any School Board officials before talking to the media and suing.

During closing arguments, Defendants also stressed the fact that Plaintiff took the case to the media

and sued without going to any school officials and discussing the issue with them.

       But none of this testimony gave the jury any indication that Plaintiff was required to exhaust

administrative remedies before suing. Even if the jury could have inferred that Plaintiff failed to

pursue necessary administrative remedies, the jury instructions as a whole were not “confusing,

misleading, or prejudicial.” 

. This is because the jury instructions

unequivocally stated: “If you find that Knox County Board of Education maintained an officially

executed policy or tolerated a custom within the school district that [led] to, caused, or resulted in

the deprivation of L.W.’s Constitutionally protected rights, then you must find in favor of the

plaintiffs.” Here, the word “must” overcomes any possible misunderstanding the jury could have

had about administrative remedies. Thus, we find no error.

D. Denial of Judgment as a Matter of Law or a New Trial

       We review a district court’s denial of a motion for judgment as a matter of law de novo.

United States v. Alpine Indus., Inc., 

, 1022 (6th Cir. 2003). “In doing so, we use the

same standard of review used by the district court.” 

judgment as a matter of law “may

be granted only if in viewing the evidence in the light most favorable to the non-moving party, there

is no genuine issue of material fact for the jury, and reasonable minds could come to but one

conclusion, in favor of the moving party.” Gray v. Toshiba Am. Consumer Prods., Inc., 

, 598 (6th Cir. 2001).

                                                - 13 -
No. 10-6240
Whitson v. Knox County Board of Education

        The district court denied Plaintiff’s motion for judgment as a matter of law because it found

that the jury’s verdict that Plaintiff’s constitutional rights had not been violated was supported by

the record. The court reasoned that, because “testimony at trial established that during recess,

children were free to engage in any activity they desired on the playground,” the jury could

reasonably determine that no constitutional violation had taken place. Without a constitutional

violation, the evidence regarding Defendants’ policies was inapposite.

        Plaintiff contends that “the district court confused permission with policy.” But Plaintiff is

mistaken. The existence of a policy, practice, custom, or procedure allows a municipal entity to be

sued under § 1983. 

. But without an actual deprivation of constitutional

rights, there is no § 1983 cause of action to begin with. See 42 U.S.C. § 1983. So, assuming without

deciding that children have a constitutional right to conduct student-led Bible study during recess,

there must have been a deprivation of that right to create a cause of action. If there was such a cause

of action, then Defendants could only be held liable under § 1983 if the deprivation occurred

pursuant to a policy, practice, custom, or procedure. See 

. Without a

deprivation, policy does not matter. So here, permission was not confused with policy; rather, the

jury found that permission meant there was no deprivation, and thus, no cause of action.

        There was ample evidence on the record that students were continuing to read and discuss

the Bible during recess, and that they were allowed to do so, which likely prompted the jury to find

that Plaintiff’s constitutional rights had not been violated. Therefore, there was a factual issue for

the jury, and judgment as a matter of law would have been inappropriate. Likewise, due to all of this

testimony on the record, it is inaccurate for Plaintiff to characterize the jury’s verdict as “against the

                                                  - 14 -
No. 10-6240
Whitson v. Knox County Board of Education

clear weight of the evidence.” See, e.g., United States v. L.E. Cooke Co., 

, 343 (6th Cir.

1993). Thus, a new trial is unwarranted.

                                       III. CONCLUSION

       Accordingly, we AFFIRM the order of the district court.




                                                - 15 -