MEMORANDUM

WILLIAM J. HAYNES, JR., District Judge.

Plaintiff, Melissa Hearring, as next friend of B.H., a minor, filed this action under 42 U.S.C. § 1983 against the Defendants: Karen Sliwowski, a school nurse who is sued in her individual capacity, and the Metropolitan Government of Nashville Davidson County, Tennessee ("Metro") that employed Sliwowski as a Metro school nurse. Plaintiff asserts a Fourth Amendment claim for the Defendant Sliwowski's visual search of B.H.'s labia without parental consent or medical emergency or other emergent circumstances. Plaintiff alleges that the Defendant Metro lacked any policy for strip searches of students that caused Sliwowski's visual search of B.H.'s labia without justification.

Before the Court is the Magistrate Judge's Report and Recommendation (Docket Entry No. 69), recommending that the Defendants' motion for summary judgment (Docket Entry No. 26) be granted and that Plaintiffs claims be dismissed. In sum, the Magistrate Judge concluded that B.H.'s Fourth Amendment right, as a minor to be free from a visual search of her labia by a school nurse who had concerns about B.H.'s medical condition, was not clearly established at the time of Sliwowski's visual search. (Docket Entry No. 69 at 21). Thus, the Magistrate Judge concluded that the qualified immunity doctrine bars any damages claims against Sliwowski. Id. The Magistrate Judge also concluded that Plaintiffs proof was insufficient to support a judgment on Plaintiffs Section 1983 claim against Metro. Id. at 26-28. Plaintiff has filed timely objections, and the Defendants filed their response.

Plaintiff asserts multiple objections to the Report and Recommendation that are, in sum: (1) that the Magistrate Judge failed to apply the "common sense" standard for qualified immunity test under Walker v. Davis, 649 F.3d 502 (6th Cir. 2011); (2) that there were not any "legitimate health concerns" to justify Sliwowski's highly intrusive search of B.H.'s labia; (3) that based upon Plaintiffs expert proof, material factual disputes exist on whether a student search policy can be formulated that preclude an award of summary judgment to Metro; and (4) that the Magistrate Judge erroneously characterized Plaintiffs theory of Metro's liability, that is, despite an express state policy, Metro lacked any policy to provide guidance to Metro school nurses on student searches that caused the offensive search at issue in this action.

In response, Defendants contend that the Magistrate Judge correctly applied the applicable law to the undisputed facts and that his conclusion on Defendant Sliwowski's qualified immunity is correct. The Defendant Metro asserts that all school nurses are appropriately trained and Plaintiffs proof cannot establish the requisite showing of deliberate indifference to impose Section 1983 liability on Metro. Moreover, Metro's proof is such a search policy is impossible for all possible searches.

For this Report and Recommendation and the objections thereto, the Court is required to conduct a de novo review. Fed.R.Civ.P. 72(b)(3).

A. Review of the Record1

The Magistrate Judge's Report and Recommendation, found the following facts that are undisputed:

In her objections, Plaintiff cites additional proof that Sliwowski stated that she had not observed B.H. "walking funny," but she wanted to make sure that B.H. "did not have an injury that I needed to be aware or something that would require emergency care." (Docket Entry No. 33, Exhibit 10, Cosby Rule 26 Statement at 5; Exhibit 2, Sliwowski Deposition at pp. 9, 12). According to Sliwowski, "child abuse was not my concern in my head when I saw the student." Id.; Exhibit 2 at p. 19. Sliwowski stated that she "could not diagnose" a urinary tract infection by her visual examination of B.H.'s labia. Id. at Exhibit 2 at pp. 19-20. As to whether Sliwowski's actions were correct, Sliwowski's nursing supervisor replied "No." (Docket Entry No. 33, Exhibit 5, Blansett Deposition at pp. 22-23).

Sliwowski did not know if parental permission were necessary to conduct a genital examination of a Metro public school student. Id., Exhibit 10, at 6; Exhibit 1, Sliwowski Deposition at p. 9. Sliwowski lacked access to B.H.'s medical records and citing patient confidentiality, Sliwowski did not request Pam Back, the school secretary who observed Sliwowski's examination, if B.H. had prior physical problems. Id.; Exhibit 1 at p. 15; Exhibit 2 at pp. 13, 17. Sliwowski also did not make a written record of her examination that is required for a clinic visit nor did Sliwowski send a note home with B.H. after the examination, as required. Id., Exhibit 1 at pp. 10-12, 22-23. According to Kimberly Fowler, the school principal, the school must inform the school nurse of "information that would be beneficial to the nurse and appropriate because as a school we are acting in loco of the parent." Id., Exhibit 6, Fowler Deposition at p. 6.

Plaintiff also cites the expert testimony of Mariann Cosby, a registered nurse, who agreed that Sliwowski could not diagnose a urinary tract infection by examining the child's labia. (Docket Entry No. 33, Exhibit 10 at 5, 10-12). Cosby cites Sliwowski's failures: to document her examination of B.H.; to question B.H.; and to check B.H.'s vital signs, temperature, pulse, respirations and blood pressure. Id. at 10-11. These latter measures provide objective data for a diagnosis of a possible urinary tract infection. Id. at 8. Cosby cites Sliwowski's statement that her examination of B.H.'s labia would not have provided any insight of whether B.H. had a urinary tract infection, id. at 5; Exhibit 2 at pp. 19-20. In Cosby's opinion, Sliwowski's examination of B.H.'s labia was improper medical treatment by a school nurse.

(Docket Entry No. 33, Exhibit 10 at 8, 12, 13) (emphasis added).

Cosby also cites national and Tennessee educational standards for school nurses that restrict medical examinations of students and prohibit a genital examination of a student absent parental consent or a medical emergency.

Id. at 8-9.

Metro's expert proof on the training of school nurses is that nurse training is provided to Metro school nurses who also have school administrators as supervisors and a nurse mentor, but a policy on student searches is "impossible" to define for all circumstances. (Docket Entry No. 36, Bergren Declaration at ¶ 5b-e, i-1). Martha Dewey Bergren, who has a doctorate in nursing and is Metro's expert, states that:

(Docket Entry No. 36, Bergren Declaration at 1-4) (emphasis added). Stephanie Blansett, a Metro nurse supervisor, provides essentially the same description of the training and supervision of Metro school nurses. (Docket Entry No. 24, Blansett Declaration at 1-3).

B. Conclusions of Law

"The very reason of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Advisory Committee Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed. 1989). Moreover, "district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the opposing party was on notice that she had to come forward with all of her evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accord, Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the nature of a motion for summary judgment:

477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in the original and added in part). Earlier the Supreme Court defined a material fact for Rule 56 purposes as "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted).

A motion for summary judgment is to be considered after adequate time for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an affirmative showing of the need for additional discovery after the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d 351, 355-57 (6th Cir.1989). But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).

There is a certain framework in considering a summary judgment motion as to the required showing of the respective parties as described by the Court in Celotex

Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (emphasis deleted).

As the Court of Appeals explained, "[t]he moving party bears the burden of satisfying Rule 56(c) standards." Martin v. Kelley, 803 F.2d 236, 239, n. 4 (6th Cir.1986). The moving party's burden is to show "clearly and convincingly" the absence of any genuine issues of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir.1991) (quoting Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986)). "So long as the movant has met its initial burden of `demonstrating the absence of a genuine issue of material fact,' the nonmoving party then "must set forth specific facts showing that there is a genuine issue for trial.'" Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989) (quoting Celotex and Rule 56(e)).

Once the moving party meets its initial burden, the Court of Appeals warned that "[t]he respondent must adduce more than a scintilla of evidence to overcome the motion [and] ... must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (quoting Liberty Lobby). Moreover, the Court of Appeals explained that

Street, 886 F.2d at 1480 (cites omitted). See also Hutt v. Gibson Fiber Glass Products, 914 F.2d 790 (6th Cir.1990) ("A court deciding a motion for summary judgment must determine `whether the evidence presents a sufficient disagreement to require a submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." quoting Liberty Lobby)).

If both parties make their respective showings, the Court then determines if the material factual dispute is genuine, applying the governing law.

Liberty Lobby, 477 U.S. at 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d at 211-212, 214 (citation omitted and emphasis added).

Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation omitted). As the Court of Appeals stated, "[a]ll facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion." Duchon v. Cajon Company, 791 F.2d 43, 46 (6th Cir.1986) app. 840 F.2d 16 (6th Cir.1988) (unpublished opinion) (citation omitted).

The Court of Appeals further explained the District Court's role in evaluating the proof on a summary judgment motion A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim. Rule contemplates a limited marshalling of evidence by the nonmoving party sufficient to establishing a genuine issue of material fact for trial. This marshalling of evidence, however, does not require the nonmoving party to "designate" facts by citing specific page numbers. Designate means simply "to point out the location of." Webster's Third New InterNational Dictionary (1986).

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989) cert, denied 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). Here, the parties have given some references to the proof upon which they rely. Local Rule 56.01(b) and (c) require a showing of undisputed and disputed facts.

In Street, the Court of Appeals discussed the trilogy of leading Supreme Court decisions, and other authorities on summary judgment and synthesized ten rules in the "new era" on summary judgment motions

Street, 886 F.2d at 1479-80.

The Court has distilled from these collective holdings four issues that are to be addressed upon a motion for summary judgment: (1) has the moving party "clearly and convincingly" established the absence of material facts?; (2) if so, does the plaintiff present sufficient facts to establish all the elements of the asserted claim or defense?; (3) if factual support is presented by the nonmoving party, are those facts sufficiently plausible to support a jury verdict or judgment under the applicable law?; and (4) are there any genuine factual issues with respect to those material facts under the governing law?

1. The Qualified Immunity Analysis

The qualified immunity doctrine involves "a balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions." Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). The Sixth Circuit articulated the rationale for qualified immunity as follows:

Poe v. Haydon, 853 F.2d 418, 423 (6th Cir.1988) (emphasis added).

This doctrine has been addressed in a series of decisions, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), that essentially establishes a two-step analysis that the Supreme Court described in Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991):

Id. at 231-32, 111 S.Ct. 1789 (emphasis added).

In Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), the Supreme Court expressly stated that courts "must first determine whether the plaintiff has alleged the deprivation of a constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the violation." In 2001, the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) stated: "A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established." 533 U.S. at 201, 121 S.Ct. 2151 (citing Siegert, 500 U.S. at 232, 111 S.Ct. 1789).

After criticisms of some circuits and others, the Supreme Court has since held that "judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In doing so, the Court recognized that in some instances, unnecessary costs can be imposed under the Saucier test. In deciding to forego the first step of Saucier's analysis, the Magistrate Judge referred to those costs in declining to address both steps in the qualified immunity analysis. (Docket Entry No. 69 Report and Recommendation at 6-7 citing "Judges Sutton and Gibbons of the Sixth Circuit openly questioning] the `rigidity' of Saucier's requirements and whether it makes sense to force lower courts to answer the constitutional questions first `no matter the costs, no matter the ease with which the second question might be answered.'") (internal citations omitted).

In Pearson, the Supreme Court identified those costs concerns that may warrant the declination of the two-step analysis:

Id., at 238, 239, 240, 241, 129 S.Ct. 808.

Later, in Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011), the Supreme Court eliminated one cost concern in adopting a policy to consider an appeal to that court by a winning party on a qualified immunity ruling. The Supreme Court's rationale included that:

Id. at 2030, 2031-32 (emphasis added).

Moreover, despite its recognition of cost concerns, the Supreme Court in Pearson reiterated the value of Saucier's two-step process.

555 U.S. at 236, 129 S.Ct. 808.2

The Court respectfully concludes that here the circumstances and the cited cost concerns do not counsel avoidance of Saucier's two step test. First, the parties have completed discovery and developed a full factual record of the controversy. Second, there are not any unsettled or ambiguous state law issues. Third, with the Magistrate Judge's legal analysis, the parties' memoranda and responses to the Report and Recommendation, the issues are well briefed. Fourth, the determination of the first step of the Saucier test is akin to ruling on a motion to dismiss for failure to state a claim that courts often do. Fifth, with any qualified immunity ruling, there is an immediate appeal as of right to the aggrieved party. Moreover, as described in Camreta, here, uncertainty exists on whether the Fourth Amendment protects a public school student from highly invasive searches without parental consent or a bona fide medical emergency. This uncertainty is in the context of likely recurring controversies, given Metro's expert proof that in Metro schools "Physical assessment is an integral part of the registered nurse[`s] role." (Docket Entry No. 36, Bergren Declaration at ¶ 5g). An application of Saucier's two step analysis can provide some guidance for school nurses in future cases aside from the resolution of Sliwowski's qualified immunity defense.

Moreover, as the Supreme Court has repeatedly observed: "A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is `clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all," Siegert, 500 U.S. at 232, 111 S.Ct. 1789, and that `"it often may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.'" Pearson, 555 U.S. at 236, 129 S.Ct. 808 (quoting Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir.2005) (Sutton, J., concurring)).

Finally, on this issue, a prerequisite for Metro's liability is a determination of whether Sliwowski's acts violated Plaintiffs federal rights. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) ("If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.") (emphasis in original).

The Court fails to discern here any costs considerations that counsel against the application of Saucier's two step analysis. Under these circumstances, the Court concludes that conducting the Saucier two step analysis is appropriate.

2. The Fourth Amendment Right

As to whether B.H. has a Fourth Amendment right to be free from a visual search of her labia, the Court reviews Fourth Amendment precedents that specifically address searches of public school students, including case law on physical examinations of public school students.

In New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), involving a search of a 14 year old female's purse for cigarettes, the Supreme Court stated: "A search of a child's person or of a closed purse or other bag carried on her person ... is undoubtedly a severe violation of subjective expectations of privacy." In Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the Supreme Court set Fourth Amendment standards for urine drug testing of public school students absent individual suspicion. The Vernonia Court upheld a school's system policy of randomly drug testing student athletes even in the absence of individualized suspicion based upon: (1) the "nature of the privacy interest upon which the search ... intrudes" that society recognizes as "legitimate", (2) "the character of the intrusion that is complained of, and (3) "the nature and immediacy of the governmental concern at issue." Id. at 654, 658, 660, 115 S.Ct. 2386. In Vernonia, the Court concluded that as student athletes, the tested students had a decreased expectation of privacy given their voluntary participation in sports; that the students were clothed and were not observed while providing the urine sample; and that deterrence of drug use by students was an important, if not compelling interest. Id. at 654-65, 115 S.Ct. 2386.

In Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009), decided on June 25, 2009, more than four months3 prior to the search of B.H., the Supreme Court held that school officials' search for pills that involved a strip search of a 13 year old middle school student, including "exposing her breasts and pelvic area to some degree" violated the student's Fourth Amendment rights. Id. at 2638.

Id. at 2641, 2642-43 (emphasis added).

In this Circuit in 1984, the late Honorable Harry Phillips, a distinguished jurist from Tennessee, authored Tarter v. Raybuck, 742 F.2d 977, 979-80 (6th Cir.1984) that addressed school officials directing a high school student to submit to a search of his person by removing his shirt and pants. The Sixth Circuit stated:

Id. at 982-83 (emphasis added).

Later, in Beard v. Whitmore Lake School Dist., 402 F.3d 598 (6th Cir.2005) public school officials searched 25 high school students for stolen money that included 15 female students who had to pull up their shirts and pull down their pants, but were never touched and were not required to remove their underwear. Id. at 602. The Sixth Circuit held:

Id. at 604-05.

In Brannum v. Overton County School Board, 516 F.3d 489 (6th Cir.2008), the Sixth Circuit held videotaping middle school age male and female athletes in various stages of undressing in a school locker-room violated the students' Fourth Amendment rights. The Sixth Circuit found:

Id. at 497, 498, 499.

As to whether, under these decisions, Plaintiff states a Fourth Amendment violation for the search of B.H., the Court concludes that the nature of the privacy interest here, the exposure of a 6 year-old girl's labia, is far greater than the students' privacy interests in T.L.Q., Safford, Beard and Brannum. The nature of the search was B.H.'s pulling down her pants and underwear as well as the separation of her vaginal area before a nurse and also a school official that resulted in embarrassment and humiliation to B.H. There is proof that this search was without a medical justification or emergency, without parental consent and was contrary to professional and state standards for public school nurses. Based upon these decisions and facts, the Court concludes that Plaintiff states and proves a violation of B.H.'s Fourth Amendment right to be free from such invasive and unjustified searches of her person by a public school nurse.

The Magistrate Judge also cited the "special needs" doctrine as justifying Sliwowski's search, as a school nurse inquiring about the need for possible medical treatment. (Docket Entry No. 69, Report and Recommendation at 12-13) (Sliwowski "was not trying to prevent an imminent injury when she examined B.H. Instead, Nurse Sliwowski was trying to determine what medical care, if any, B.H. required for her existing medical condition").4

The "special needs" doctrine applies where an important governmental interest justifies excusing the probable cause requirement of the Fourth Amendment, Ferguson v. City of Charleston, 532 U.S. 67, 76 n. 7, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), or where compliance with Fourth Amendment standards is "impracticable." Bd. of Educ. of Independent School Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 829, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (drug testing of middle and high school students). In T.L.O., the Supreme Court recognized that school officials act in loco parentis for school children and "the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause." 469 U.S. at 341, 105 S.Ct. 733.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir.2003), the Tenth Circuit considered this special needs doctrine in the context of genital examinations of pre-school students who were subjected to such searches. There, the school employed an agency to conduct health examinations, but the agency had to secure parental permission for such examinations. The district court ruled that the students' Fourth Amendment rights were violated given the absence of a medical emergency or parental consent. The Tenth Circuit held that the special needs doctrine did not apply because there was not any showing that securing a parent's consent was impracticable. Id. at 1214-15. The Tenth Circuit explained that

Id. at 1207 (emphasis added).

Under the facts here, the trier of fact could reasonably find the lack of any objective facts of a medical necessity justifying this search of B.H.'s labia nor facts of a medical emergency. Plaintiffs expert proof is that Sliwowski did not use any objective measures to assess whether B.H. had an illness. Based upon Plaintiffs expert testimony, the trier of fact could find that Sliwowski breached national and state standards prohibiting such genital searches without parental approval or a medical emergency thereby rendering this search unreasonable. Thus, the Court agrees with Dubbs and concludes that the special needs doctrine cannot justify this search of B.H.

3. The "Clearly Established Right" Analysis

As to whether B.H.'s Fourth Amendment right was clearly established at the time of Sliwowki's search, the Supreme Court has not specified its test for a "clearly established right." See Harlow v. Fitzgerald, 457 U.S. 800, 818 n. 32, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Sixth Circuit adopted the following test: "In order to be clearly established, a question must be decided either by the highest state court in the state where the case arose, by a United States Court of Appeals, or by the Supreme Court." Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988) (citation omitted). Later, the Sixth Circuit included district court decisions within the district of the controversy: "Our review of the Supreme Court's decisions and of our own precedent leads us to conclude that, in the ordinary instance, to find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its Court of Appeals or itself. Ohio Civil Serv. Employees Assn. v. Seiter, 858 F.2d 1171, 1177 (6th Cir.1988) (emphasis added). The consideration of other circuits' decisions, however, is limited.

Id. at 1177-78; accord Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir.1993) (explaining that the resort to decisions of other courts arises only "in an extraordinary case.").

Plaintiff cites Walker v. Davis, 649 F.3d 502 (6th Cir.2011) where the Sixth Circuit denied the qualified immunity defense involving a Fourth Amendment claim by citing the general Fourth Amendment right that absent an immediate threat, an officer could not resort to the use of deadly force by ramming a suspect's vehicle. Id. at 503-04. The Sixth Circuit ruled that the issue of the officer's intent was for the jury. Id. As to the qualified immunity issue, the Sixth Circuit stated:

Id. (quoting Smith v. Cupp, 430 F.3d 766, 776-77 (6th Cir.2005) (emphasis added, internal marks omitted)).

In T.L.O., the Supreme Court expressly stated that "[a] search of a child's person... is undoubtedly a severe violation of subjective expectations of privacy." 469 U.S. at 379, 105 S.Ct. 733. Here, more than four months prior to Sliwowski's search, the Supreme Court held that causing a female student to expose her breasts and pelvic area in search of drugs violated that student's Fourth Amendment right to privacy. Safford Unified School Dist., 129 S.Ct. at 2641-2643.

Based upon the Sixth Circuit decisions discussed supra, the Sixth Circuit addressed whether "strip searches" of high school students in a nursing class in 2005 for a lost credit card violated a clearly established right. Knisley v. Pike County Joint Vocational School, 604 F.3d 977 (6th Cir.2010). There, the Sixth Circuit stated:

Id. at 982-83 (emphasis added).

In Tarter, although the Sixth Circuit found the searches reasonable, the Court approvingly quoted a Seventh Circuit decision that: "`[i]t does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human decency.'" "`We suggest as strongly as possible that the conduct herein described exceeded the `bounds of reason' by two and a half country miles.'" 742 F.2d at 983 (quoting Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir.1980) (footnote omitted)).

In an action rising out of this district, this Court held that videoing middle school age students in various stages of undress in a school locker room violated the students' Fourth Amendment rights, Brannum, 516 F.3d at 498. There, the Sixth Circuit affirmed this Court's denial of qualified immunity for the school officials who implemented the school video system.

Id. at 499-500 (emphasis added).

Given the Supreme Court's statement in T.L.O. that "[a] search of a child's person... is undoubtedly a severe violation of subjective expectations of privacy," 469 U.S. at 379, 105 S.Ct. 733 and the holding in Safford and the Sixth Circuit's repeated statements in Tarter, Beard and Brannum, the Court concludes that those statements of law are more than "capable of giving clear and fair warning to [school officials] even where the very action in question has not previously been held unlawful.'" Walker, 649 F.3d at 503-04 (quoting Smith v. Cupp, 430 F.3d 766, 776-77 (6th Cir.2005) (internal citations omitted)).

Moreover, for an "extraordinary case," decisions of other Circuits can be considered on qualified immunity issues. Where prison officials asserted a qualified immunity defense to claims for cavity searches of prison visitors, the Sixth Circuit relied upon decisions of other Circuits to hold that the prison visitor's Fourth Amendment right to be free from a body cavity search was a clearly established constitutional right. Daughterly v. Campbell, 935 F.2d 780, 785-87 (6th Cir.1991) (citing Supreme Court and the First, Fifth and Eighth Circuits to hold cavity searches of prison visitors to be a clearly established Fourth Amendment violation). Thus, the Court considers this comparable search of B.H.'s labia to present an "extraordinary case," warranting consideration of other Circuit decisions.

Three other Circuits have held that strip searches of very young public school students violate the Fourth Amendment.5 Two Circuits' decisions in 1999 and 2003 involved medical examinations of young children's genitalia. Tenenbaum v. Williams, 193 F.3d 581, 587, 601-02 (2d Cir.1999) (holding inter alia that the removal of a five year old from kindergarten at a public school for an examination of her vagina and anus for possible sex abuse "without parental consent or judicial authorization violated [the child's] Fourth Amendment rights"); Dubbs, 336 F.3d at 1200, 1206-07, 1215 (physical examination, including genital examination of pre-elementary students in Head Start programs, "constituted `searches' within the meaning of the Fourth Amendment, and thus were unconstitutional unless they were performed with warrant or parental consent, or fall within the `special needs' exception to the warrant requirement," but as discussed earlier, that Court found that the special needs doctrine could not justify such examinations without parental notice and consent on medical emergency).

Based upon these collective authorities, the Court concludes that the fundamental dignity of a young person's body is so obvious and the cited Supreme Court and Sixth Circuit decisions since 1984 provide more than fair warnings to school officials that such intrusive searches of students cannot be made by school officials without justification. The search of B.H. was not an emergency situation and was contrary to published national nursing standards and state educational standards for school nurses. As evidenced by her nursing supervisor, supra at 5, Sliwowski's search was not the "proper performance of [her] duties," Forrester, 484 U.S. at 223, 108 S.Ct. 538, that is a key rationale for qualified immunity. Applying Walker and Smith, the Court concludes that B.H.'s Fourth Amendment right to be free from such an highly invasive search was clearly established at the time of Sliwowski's search and that Sliwowski is not entitled to qualified immunity.

4. Metro's Liability

Given Plaintiffs insistence that the Magistrate Judge erroneously characterized her legal claim against Metro, the Court quotes Plaintiffs description of her theory of Metro's liability that is based upon "2007 Guidelines for Use of Health Care Professionals in a School Setting" and the "Tennessee Department of Education School Health Screening Guidelines" that "Metro should have been aware that parental consent is needed for the examination of children of tender years. That a policy should have been developed by Metro, the parameters of which were explained to school nurses in the form of some type of training on how to react to situations such as this, is without question." (Docket Entry No. 70, Plaintiffs Objections at 8) (emphasis in the original). Plaintiff also argues that the Magistrate Judge erred in characterizing Plaintiffs theory as a "single incident" Id. at 8. The Magistrate Judge stated, however, that Metro's motion for summary judgment should be denied if "some reasonable dispute exists as to whether [Metro] ignored an `obvious' and `foreseeable' risk that its nurses would unlawfully examine the genital areas of Metro students." (Docket Entry No. 69, Report and Recommendation at 24).

Unlike states, cities are persons that may be liable under § 1983 for their illegal acts or those of their employees, but only under certain conditions, where:

Monell v. Department of Social Servs., 436 U.S. 658, 690, 691, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In a word, "the Monell Court held that only deprivations visited pursuant to municipal `custom' or `policy' could lead to municipal liability" under § 1983. City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

As to the quantum of proof required to establish liability of local governmental units under Monell, the plurality opinion of four Justices in Tuttle stated:

Id. at 823-24, 105 S.Ct. 2427 (emphasis added and footnote omitted); accord Williams ex rel. v. Ellington, 936 F.2d 881, 884 (6th Cir.1991) (a single strip search pursuant to an otherwise "facially valid [school board] policy" on student searches based upon T.L.O. is insufficient to state a claim against the municipal school board). An isolated act of any employee also does not establish a policy. Sargi v. Kent City Board of Education, 70 F.3d 907, 912 (6th Cir.1995).

Later, however, in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court, in another plurality opinion, held that the single decision of an authorized municipal decision maker, the district attorney, may be considered to set municipal policy and thereby be the basis of municipal liability under § 1983.

Id. at 481, 106 S.Ct. 1292 (emphasis added). The official's choice must be a deliberate decision to impose liability. Sargi, 70 F.3d at 912.

In a third plurality opinion, it was stated that whether a single official has policymaking authority for a municipality is a question of state law for the court. City of St. Louis v. Praprotnik, 485 U.S. 112, 124-26, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). As to the factors to consider, if state law is unclear, the plurality opinion in Praprotnik states:

Id. at 127, 108 S.Ct. 915. Accord Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598(1989), (reaffirming Praprotnik that the issue of who possesses final policymaking authority is to be resolved as a question of state law before § 1983 liability can be imposed before the issue goes to the jury). In Marchese v. Lucas, 758 F.2d 181 (6th Cir. 1985), the Sixth Circuit applied this rule to the relationship between a county and its sheriff.

Id. at 189. Where the sheriff was the "sole policymaker for the conduct of jail officials," the Court also found that imposing liability against the county was proper. Heflin v. Stewart County, 958 F.2d 709, 716 (6th Cir.1992).

Based upon these authorities, a Section 1983 claim against a municipality requires proof of (1) the existence of an unconstitutional policy or custom, (2) the connection of the policy to the municipality itself, and (3) a causal link between the unconstitutional policy and the particular injury alleged. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120-21, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). The absence of a policy can also give rise to municipal liability where prior unconstitutional conduct should have provided notice to the municipality and its key officials, Brandon v. Holt, 469 U.S. 464, 466-67 nns. 3-5, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985), or there is a disregard of an obvious need for medical care. Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir.1989).

For certain claims against a municipality, there are specific evidentiary burdens to impose § 1983 liability. In City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Supreme Court addressed the requisite proof for a § 1983 claim against a municipality for physical injuries allegedly caused by inadequate training of its police officers.

Id. at 385, 388-391, 109 S.Ct. 1197 (footnotes omitted).

The Canton standard for municipal liability is an objective one. Farmer v. Brennan, 511 U.S. 825, 841, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Canton standard of liability was later characterized as an "obviousfness] test." Id. at 841, 114 S.Ct. 1197). (citing Canton, 489 U.S. at 396, 109 S.Ct. 1197). In a word, "it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id. at 390, 109 S.Ct. 1197. The Supreme Court's most recent statement of this governing principle is that "To prove deliberate indifference, [plaintiff] needed to show that [the defendant] was on notice that, absent additional training, it was `highly predictable' that [its employees] would be confounded by those gray areas and make incorrect" decisions that violate plaintiffs constitutional rights. Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 1365, 179 L.Ed.2d 417 (2011).

It must also be remembered that in this context, "deliberate indifference" under Canton "refers to indifference to injuries likely to result from a failure to act, not indifference to whether such injuries constitute deprivation of a constitutional right." Garner v. Memphis Police Dep't, 8 F.3d 358, 366 (6th Cir.1993). In Barber v. City of Salem, 953 F.2d 232 (6th Cir.1992), the Court distilled the Canton standard as follows:

Id. at 235-36 (citing Canton, 489 U.S. at 387-88, 109 S.Ct. 1197) (emphasis added).

As to Metro's knowledge of any obvious risk in the context of physical searches of public school students, it must be remembered that since 1985, the Supreme Court clearly stated that in the school environment, "[a] search of a child's person ... is undoubtedly a severe violation of subjective expectations of privacy." T.L.O., 469 U.S. at 337-38, 105 S.Ct. 733. T.L.O. also cited its precedent that "[exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where `other safeguards' are available to assure that the individual[s] reasonable expectation of privacy is not `subject to the discretion of the official in the field.'" Id., at 342 n. 8, 105 S.Ct. 733 (emphasis added with internal marks omitted). Accord Watkins v. Millennium School, 290 F.Supp.2d 890, 901 (S.D.Ohio 2003). Again, prior to B.H.'s search, the Supreme Court stated: "T.L.O. directed school officials to limit the intrusiveness of a search, `in light of the age and sex of the student and the nature of the infraction.'" Safford Unified School Dist., 129 S.Ct. at 2643 (quoting T.L.O., 469 U.S. at 342, 105 S.Ct. 733).

As a matter of law, T.L.O. and Safford imposed legal directives upon school officials to formulate policies for searches of public schoolchildren so that "`other safeguards' are available to assure that the individual[`s] reasonable expectation of privacy is not `subject to the discretion of the official in the field.'" T.L.O., 469 U.S. at 342 n. 8, 105 S.Ct. 733. These directives were for policies sensitive to the "`age and sex of the student and the nature of the infraction.'" Safford, 129 S.Ct. at 2643 (quoting T.L.O., 469 U.S. at 342, 105 S.Ct. 733). Although Metro asserts that such a policy is impossible, as reflected by the Sixth Circuit's Ellington decision affirming a school policy citing T.L.O. standards, school boards have been able to set a policy since 1991. 936 F.2d at 884. T.L.O. does not require a policy for all searches, but policies that at least comply with T.L.O. standards as in Ellington. Metro does not offer any proof that its school nurses or their supervisor received any training on the Fourth Amendment principles for searches of a student's person or that such searches pose serious Fourth Amendment issues. The Sixth Circuit decisions prior to Sliwowski's search provide clear warning of the highly intrusive nature of these strip searches of public school students. Thus, as a matter of law, T.L.O. and particularly Safford, put school boards on notice of the need to provide policies, based upon the age and sex of students, to protect public school students from arbitrary searches of their persons by school employees in the field that can involve, as here highly intrusive violations of a fundamental constitutional right that school officials must take measures to protect.

As a factual matter on foreseeability, the National nursing training entities and Tennessee school health officials issued standards and guidelines, prior to the search of B.H. Those standards and guides address the necessity for parental consent for physical examinations of public school students:

(Docket Entry No. 33, Exhibit 10 at 8-9). Sliwowski testified that if there had been a policy she would have followed that policy. (Docket Entry No. 33, Exhibit 1, Sliwowski Deposition at pp. 24-25).

Tennessee state education officials set standards that "Parental consent is also discussed in the Tennessee Department of Education School Health Screening Guidelines. This resource addresses the fact that parental permission is needed in order for the school to perform the vision, hearing, scoliosis and other health care screenings that are typically done by school nurses." (Docket Entry No. 33, Exhibit 10 at 9). NASN's School nursing: A Comprehensive Text also states, "`physical assessment of the genital region is not usually performed in the school setting.'" Id. at 8. Defendants' proof is that "Physical assessment is an integral part of the registered nurse role." (Docket Entry No. 35, Bergren Declaration at ¶ 5g).

With these facts, a trier of fact could reasonably conclude that it was foreseeable that school nurses likely engage in highly intrusive searches of students. Yet, Metro's experts do not mention any policy or training on legal standards for school nurses' physical examinations of students based upon age and sex of the student as required by T.L.O. nor on the necessity of parental consent under the cited national and Tennessee school guidelines. Viewing the evidence in a light most favorable to the opposing party, as required on this type of motion, the Court concludes that a trier of fact could reasonably find that Metro had a policy or custom of leaving searches, such as these to the school nurse and/or particular school personnel, without any training on the Fourth Amendment's limitations on such searches despite the obvious likelihood of such searches.

Applying Connick, the Court concludes that under the facts here Plaintiff's proof is sufficient to prove that Metro was on notice that "absent additional training, it was `highly predictable' that [its employees] would be confounded by those gray areas and make incorrect" decisions that violated Plaintiffs Fourth Amendment rights. Connick, 131 S.Ct. at 1365.

For these collective reasons, the Court concludes that the Magistrate Judge's Report and Recommendation (Docket Entry No. 69) should be set aside and the Defendants' motion for summary judgment (Docket Entry No. 26) should be denied.

An appropriate Order is filed herewith.

ORDER

In accordance with the Memorandum filed herewith, the Magistrate Judge's Report and Recommendation (Docket Entry No. 69) is SET ASIDE, and Defendants' motion for summary judgment (Docket Entry No. 26) is DENIED.

It is so ORDERED.