Opinion
CASE NO. 3:18cv2208-MCR-HTC
2022-06-13
N.R., a minor, BY Jason RAGAN and Amy Ragan, his natural guardians, Plaintiff, v. The SCHOOL BOARD OF OKALOOSA COUNTY, FLORIDA ; Mary Beth Jackson ; Stacie Smith; Arden Farley; Alan Lambert; Jon Williams; Roy Frazier ; and Jean Hennion, Defendants.
Dean Robert LeBoeuf, John M. Leace, Ryan Blake Hobbs, Ryan Philip Molaghan, Brooks LeBoeuf Foster etc. PA, Tallahassee, FL, for Plaintiff. Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, for Defendant Jon Williams. Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Mobile, AL, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, for Defendant Roy Frazier.
Dean Robert LeBoeuf, John M. Leace, Ryan Blake Hobbs, Ryan Philip Molaghan, Brooks LeBoeuf Foster etc. PA, Tallahassee, FL, for Plaintiff.
Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, for Defendant Jon Williams.
Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Mobile, AL, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, for Defendant Roy Frazier.
ORDER
M. CASEY RODGERS, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant Roy Frazier's Motion for Summary Judgment (ECF No. 237). Plaintiff N.R. is an autistic, nonverbal child who alleges physical and verbal abuse at the hands of his exceptional students education (ESE) teacher, Roy Frazier, while enrolled at Silver Sands School in Okaloosa County, Florida (Silver Sands), during the 2014–15 school year. N.R., through his parents, Jason and Amy Ragan, filed the instant action against Frazier, the School Board, and six other individual defendants.
Silver Sands is part of the Okaloosa County School District (School District), which is governed and overseen by the Okaloosa County School Board (School Board). Silver Sands is a Title I public school that "provides educational services to students who, because of their mental functioning levels, require services beyond those offered by other special educational programs in regular schools." www.okaloosaschools.com/silversands. Silver Sands students range in age from three to twenty-two years old. Id. Silver Sands is governed and overseen by the Okaloosa County School Board (School Board), which operates, controls, and supervises all schools within the School District, including appointing, suspending, and terminating employees. See Fla. Const. Art. IX § 4 ; Fla. Stat. §§ 1001.32(2), 1001.42, and 1012.22(1). The School Board is responsible for developing and adopting policies and programs governing school operations. See Fla. Stat. § 1001.41(1) –(3). The School Board can adopt policies upon the recommendation of, and delegates implementation of its policies to, the Superintendent, who is the secretary and executive officer of the School Board responsible for the administration and management of all schools within the School District and the supervision of instruction. See Fla. Stat. §§ 1001.32 and 1001.33 ; C.H. v. Sch. Bd. of Okaloosa Cty., Fla., et al. , No. 3:18cv2128 (ECF Nos. 298-8 at 2 and 298-9). From 2012 until 2019, the School Board operated approximately forty K-12 schools, including Silver Sands; employed approximately 3,200 individuals; and educated more than 30,000 students each year. As of November 13, 2015, 4,223 students were classified as students with disabilities across all exceptionalities.
The other Defendants remaining in the action as of the time this Order issued are Jon Williams, Principal of Silver Sands beginning in February 2016; Mary Beth Jackson, Superintendent of the School District; and Stacie Smith, Assistant Superintendent of Human Resources for the School District. N.R. also named as Defendants Jean Hennion, Frazier's teaching aide; Arden Farley, an equity investigator for the School District responsible for investigating claims of misconduct by instructional personnel and school administrators; and Alan Lambert, Principal of Silver Sands until February 2016. N.R. settled his claims against Hennion, Lambert, and Farley, and thus those claims were dismissed. See ECF Nos. 173, 176, 180, 193, 228, 235.
Frazier, as well as the other Defendants, previously filed a motion to dismiss (ECF No. 47), which the Court granted in part and denied in part (ECF No. 82). Specifically, with regard to Frazier, the Court dismissed N.R.’s claim for unreasonable seizure but allowed N.R. to proceed with his federal claim for violation of his substantive due process rights and state law claims for disability discrimination, negligence, and battery. Frazier has now moved for summary judgment on those claims. See ECF No. 237. Having carefully considered the motion, the record, and the applicable law, the Court finds the motion should be denied.
There are three additional, related suits pending in this Court, which were consolidated, along with the instant action, for purposes of discovery—two suits based on alleged abuse by Frazier and Hennion at Silver Sands, see C.H. v. Sch. Bd. of Okaloosa Cty., Fla., et al. , No. 3:18cv2128 (lead case), and Van Etten v. Sch. Bd. of Okaloosa Cty., Fla., et al. , No. 3:19cv82 (member case), and a third suit based on allegations that another ESE teacher, Marlynn Stillions, abused a student at Kenwood Elementary School, see N.P. v. Sch. Bd. of Okaloosa Cty., Fla. , et al., No. 3:18cv453 (member case).
For the limited purpose of this summary judgment proceeding, the Court views "the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party"—here, N.R. Martin v. Brevard Cty. Pub. Sch. , 543 F.3d 1261, 1265 (11th Cir. 2008) (internal marks omitted).
N.R. was born on September 9, 2021. As indicated above, N.R. is autistic and non-verbal. As a result of his disability, N.R. was assigned a one-on-one aide—Marian Gilmore during the relevant time period; he also was placed on an Individualized Education Plan (IEP). For the 2014–15 school year, N.R. was assigned to Frazier's classroom. N.R. alleges Frazier physically and verbally abused him, as well as other ESE students at Silver Sands, during that year. In particular, N.R. alleges Frazier pushed, slapped, punched, pinched, flicked, kicked, and threw shoes at him. N.R. also alleges Frazier unlawfully restrained him by strapping him to a statutory exercise bike, which once fell on top of him, for hours at a time and confining him in a cardboard box. N.R. further contends Frazier routinely locked him in a hot transport van while shopping at yard sales to obtain items for resale—excursions Frazier characterized as "field trips." N.R. alleges Frazier verbally abused him by making sexually explicit, crude, and vulgar comments about his mother and by calling him inappropriate names. Gilmore testified Hennion also spoke inappropriately around students in the classroom, including calling nonverbal students, and another student's father, "douchebags."
Although N.R. alleges in the second amended complaint that he was assigned to Frazier's classroom until Frazier retired, at the end of the 2015–16 school year, N.R.’s mother, Amy Ragan, acknowledged in her deposition that N.R. was not in Frazier's classroom during the 2015–16 school year because Lambert had removed him from Frazier's classroom at his parents’ urging.
Gilmore stated that despite his high pain tolerance, N.R. would go into a state of shock when Frazier flicked his ear.
According to Gilmore, the cardboard box was a refrigerator box, approximately four feet tall, with a lid that was sometimes closed, a practice Gilmore considered unacceptable and abusive. Gilmore explained that for some ESE kids, including N.R., confinement is "torture." C.H. , No. 3:18cv2128 (ECF No. 298-28 at 62) (the page numbers cited throughout this Order refer to those assigned by the Court's electronic docketing system, as opposed to any other page number that may appear, and appear in documents filed in the lead case in support of Defendants’ summary judgment motions). Hennion stated in an interview that when N.R. wanted out of the box, which required that he turn the box over, Frazier would go over to the box, knock on it, and tell N.R. that he was being too loud and needed to calm down.
Frazier sometimes would drop the items off at his home before returning the students to school. At other times, Frazier would take the items to school and give them to a student's aide to fix in the classroom. Frazier told Silver Sands administration that he took the students on the "field trips" to teach them how to exchange money and count change. Kelsea Koch, a one-on-one aide in Frazier's classroom for a student identified as "D.M.," however, says that never happened and that Frazier made the students stay on the bus.
Various individuals witnessed Frazier physically and verbally abuse his students, including N.R., and reported the abuse to school officials. During the 2014–15 school year, Gilmore reported to Lambert that Frazier had confined N.R. in the cardboard box. On a separate occasion, Gilmore advised Lambert that Frazier brought a bb gun into the classroom. During the conversation, Gilmore "broke down in tears" and "spilled a lot of things to" Lambert, including that Frazier was still "strapping [N.R.] in the bike chair to keep him from going places." Id. at 11. Gilmore also told Lambert that Hennion, rather than Frazier, was preparing students’ IEPs and calling students bad names and that Frazier was flicking students’ ears, eating students’ food, and going to yard sales while leaving students in the vehicle. Gilmore believes she also reported to Lambert that Frazier had thrown shoes at students.
Frazier was able to bring the bb gun into the school by concealing it in an umbrella. He apparently brought it to school and into the classroom so a student's aide could work on it during the school day.
For the 2015–16 school year, Koch replaced Gilmore in Frazier's classroom. Koch witnessed the incident in which Frazier struck C.H. in the chest. According to Koch, C.H. reacted "bug-eyed, like shocked moment, and then ... just sat there, you know. Like maybe made like a small sound and just sat quietly." C.H. , No. 3:18cv2128 (ECF No. 298-27 at 13). Approximately thirty minutes after the incident, Koch reported it to Lambert. Koch met with Lambert for approximately half an hour and advised Lambert, among other things, that he thought Frazier hitting C.H. constituted abuse. According to Koch, it appeared that Lambert was not listening to him and was dismissive of his complaint. Koch testified in his deposition that he left the meeting feeling like "if [Lambert] doesn't think this is abuse, then nothing else that I have seen is ever going to be considered abuse. Because to me, the – the hit to [C.H.] was about as bullyish as it gets. That's hitting a student for making a noise because you can't hear [about] somebody's vacation." Id. at 30.
Lambert and Frazier had been friends for approximately thirty-five years, having gone to college together and even lived together at one time.
Not long after the first meeting, Koch again reported Frazier's abuse to Lambert—to the best of Koch's recollection, because of an incident with D.M. that caused D.M. to defend himself in a violent manner and/or the inappropriate "field trips." Id. at 18. After meeting with Lambert, Koch returned to the classroom, where Frazier approached him and asked, "do you really think that's abuse," to which Koch replied, "yes, a hundred percent. I'm in tears right now. I think this is abuse." Id. at 15. Koch testified that he explained to Frazier that "[t]his is not touching students to protect them from hurting themselves or others" and was "not a gray area." Id. at 15–16.
Koch estimates this second meeting occurred "not too much longer after the first" because "it was pretty much every week [he] could have found an instance of abuse" by Frazier. Id. at 31.
Koch believes he met with Lambert a third time regarding Frazier's conduct. Lambert, however, continued to ignore the reports. Koch's impression after each meeting was that Lambert wanted him out of his office and to "get him to stop crying and be done with him." Id. at 35. Following the last meeting, Koch was reassigned to another classroom—in Koch's opinion, in retaliation for reporting Frazier's abuse.
In early February 2016, Williams replaced Lambert as Principal of Silver Sands. On February 12, 2016, Janalou Mills, a teacher at Silver Sands, was having a conversation with Williams in his office when Frazier's name came up. Mills advised Williams that Frazier allegedly had punched a student, apparently misidentified as K.S., in the chest and dropped another student on his head. Mills reported what she had been told by Donna Koch, another teacher at Silver Sands, who reported what she had been told by her son, Kelsea Koch. The same day, Gilmore emailed Williams to report alleged misconduct by another teacher. She later met with Williams and told him about her experience in Frazier's classroom, including Frazier's inappropriate comments, strapping students to the exercise bike, and bringing a bb gun to school.
After receiving Gilmore's email, Williams spoke to Smith the same day and advised her of the concerns Mills brought to his attention. Williams also contacted the Florida Department of Children and Families (DCF) and reported that Frazier allegedly punched K.S. in the chest. Williams identified Kelsea Koch as a witness to the incident.
Pursuant to Fla. Stat. § 39.201, any person who knows, or has reasonable cause to suspect, that a child is being abused by a caregiver or person responsible for the child's welfare is obligated to immediately report the abuse to DCF.
On February 16, Williams spoke to Richard White, a deputy with the Okaloosa County Sheriff's Office (OCSO). Williams reported to Deputy White that he had received a report that Frazier struck a thirteen-year-old ESE student, who Williams correctly identified as C.H., in the chest approximately two months earlier. According to Deputy White, Williams also reported that he had been informed that Frazier pinched and used pressure point techniques on students.
The day she received the report, Smith sent a letter to Jackson recommending that Frazier receive a three-day suspension for not following a student's Behavior Intervention Plan and not listing all traveled locations on his field trip forms. The next day, Jackson approved the recommendation, which she apparently worked on with Smith, and submitted it to the School Board for approval. Smith and Jackson did not apprise the School Board of the investigation into Frazier; they also did not wait for the School Board's approval before allowing Frazier to return to the classroom. On April 11, 2016, the School Board approved the recommendation and suspended Frazier for three days—which he was allowed to choose over the course of the next thirty days. After being placed on leave, Frazier emailed Smith inquiring about the procedural requirements. Smith responded by advising Frazier that he was "placed on administration [sic] leave due to the seriousness of the allegations" against him and that placing him on administrative leave was "for the protection of both the students and yourself while this investigation takes place." C.H. , No. 3:18cv2128 (ECF No. 298-35 at 1).
Pursuant to School Board policy, Jackson was required to immediately report to the School Board any unprofessional conduct by any educator in any manner relating to student discipline, which plainly would encompass Frazier's actions as detailed in Farley's report. Moreover, pursuant to Fla. Stat. § 1012.796(5), when an allegation of teacher misconduct that affects the health, safety, or welfare of a student is received, the superintendent, in consultation with the principal, must, at a minimum, immediately suspend the teacher from regularly assigned duties, with pay, and reassign the teacher to positions that do not require direct contact with students.
On February 22, Farley met with Frazier to discuss the allegations against him and allow him an opportunity to respond. Frazier admitted to having inappropriate physical contact with students. When the investigation was complete, Farley prepared a final investigative summary, in which he confirmed "[t]here was sufficient evidence that Respondent Roy Frazier violated the Code of Ethics and Principles of Professional Conduct." C.H. , No. 3:18cv2128 (ECF No. 298-37 at 9). Farley recommended that Frazier be disciplined and "evaluated in regards to whether an environment of disable[d] students is where he should work." Id. at 10. Farley provided a copy of his report to Smith on March 16, 2016; the OCSO provided a copy of the report to the Florida Department of Education Office of Professional Practice Services.
DCF also investigated Williams’ report, interviewing K.S., K.S.’s mother, and Frazier. DCF did not interview Koch, despite the fact that Williams identified him as a witness. K.S. and his mother indicated the allegations were unfounded. Williams did not contact DCF to correct the misidentification because he was unaware it had occurred and also assumed DCF was working with the OCSO. DCF closed its investigation on March 29, 2016, after determining K.S.’s safety was not at risk.
In October 2017, the State Attorney's Office initiated a criminal investigation into the alleged abuse, with which Williams cooperated, including by giving a recorded interview. During the interview, Williams relayed what Mills conveyed to him. The investigation concluded when C.H.’s father, Russell Hilligoss, refused to bring charges because he did not believe the allegations against Frazier. In fact, Hilligoss signed papers agreeing to drop the charges against Frazier after learning that someone he considered reliable had characterized Koch as a trouble maker.
At the time of the interview, which occurred on January 12, 2018, Williams was still unaware he had misidentified the victim when reporting the allegations to DCF. Williams does not recall how he learned the alleged victim of the punch was C.H. and not K.S., and he did not realize he had misidentified the victim until he obtained a recording of his telephone call to DCF later in 2018 in response to a newspaper report indicating someone had made a false report.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, "shows that there is no genuine dispute as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see also Martin v. Brevard Cty. Pub. Sch. , 543 F.3d 1261, 1265 (11th Cir. 2008). Summary judgment is not appropriate "if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact." Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 594 (11th Cir. 1995). An issue of fact is "material" if it might affect the outcome of the case under the governing law, and it is "genuine" if the record taken as a whole could lead a rational fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 807 (11th Cir. 2010) (en banc). The court will not make credibility determinations or weigh the evidence presented on summary judgment. Frederick v. Sprint/United Mgm't Co. , 246 F.3d 1305, 1311 (11th Cir. 2001). Whenever sufficient, competent evidence is present to support the non-moving party's version of the disputed facts, the court will resolve disputes in the non-moving party's favor. See Pace v. Capobianco , 283 F.3d 1275, 1276 (11th Cir. 2002).
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must prove a deprivation of a constitutional or federal statutory right by someone acting under of state law. Doe v. Sch. Bd. of Broward Cty., Fla. , 604 F.3d 1248, 1265 (11th Cir. 2010). N.R. asserts a claim against Frazier for violation of his Fourteenth Amendment substantive due process rights. It is undisputed that Frazier was acting under color of state law—in his capacity as an ESE teacher—with regard to the conduct N.R. alleges. The only dispute, therefore, is whether N.R. has adduced sufficient evidence to raise a genuine issue of material fact with regard to whether Frazier's conduct deprived him of a constitutional or federal statutory right.
As the Court previously explained, see ECF No. 82, school officials violate the substantive component of the Due Process clause when their use of excessive corporal punishment rises to the level of "arbitrary, egregious, and conscience-shocking behavior" that is " ‘unjustifiable by any government interest.’ " See Neal ex rel. Neal v. Fulton Cty. Bd. of Educ. , 229 F.3d 1069, 1074–75 (11th Cir. 2000) (quoting Cty. of Sacramento v. Lewis , 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ); see also Ingraham v. Wright , 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). To prevail on such a claim, N.R. must prove (1) that Frazier "intentionally used an amount of force that was obviously excessive under the circumstances, and (2) the force used presented a reasonably foreseeable risk of serious bodily injury." Neal , 229 F.3d at 1075.
The test has an objective and a subjective component, both of which must be met before Frazier can be held liable. Id. at 1075 n.3. The objective component requires the Court to consider the "totality of the circumstances" when deciding "whether the amount of force used is obviously excessive," including (1) the need to administer corporal punishment to the student; (2) the relationship between the need for punishment and the amount of punishment administered; (3) the extent of any injury inflicted; and (4) whether or not the student is disabled. Id. at 1075–76 ; T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cty., Fla. , 610 F.3d 588, 599–600 (11th Cir. 2010) ; see also Hatfield v. O'Neill , 534 F. App'x 838, 845 (11th Cir. 2013) (noting the disability factor is particularly significant when the plaintiff's disability is "profound"). The subjective component focuses on whether the school official "subjectively intend[ed] to use that obviously excessive amount of force in circumstances where it was foreseeable that serious bodily injury could result." See Neal , 229 F.3d at 1075 n.3.
With regard to the objective component, the Court finds N.R. has adduced sufficient evidence to raise a genuine issue of material fact as to whether the amount of force Frazier used was obviously excessive under the circumstances. With respect to the first two factors, N.R. has adduced evidence of a pattern of physical abuse by Frazier, including pushing, slapping, punching, pinching, flicking, kicking, and throwing shoes at him. N.R. also has adduced evidence that Frazier withheld food from him and, on multiple occasions, strapped him to a stationary bike, confined him in a cardboard box, and left him in a hot transport van. Moreover, the evidence shows there was little or no need for Frazier to use physical force against N.R. Indeed, there is no indication Frazier was acting in self-defense, or with any reasonable, identifiable pedagogical or disciplinary purpose, or to protect N.R. from harming himself or others. Simply put, although N.R., like any student, may have posed challenges in the classroom given his disabilities, there is no evidence those challenges required the type and amount of physical force Frazier administered, much of which Frazier does not deny." C.H. , No. 3:18cv2128 (ECF No. 298-37 at 5); see also Hatfield, 534 F. App'x at 845–46 (holding the need for a teacher to strike a developmentally disabled child in the head was nonexistent where the teacher was not acting in self-defense, with a disciplinary purpose, or in an attempt to protect the child); B.M. ex rel. M.F. v. Thompson , No. 3:13cv13, 2013 WL 4547344, at *5 (M.D. Fla. Aug. 27, 2013) (finding allegations that a teacher lodged an unprovoked attack by throwing a pencil at a severely disabled student "when there was no need for any use of force at all," considered with the surrounding circumstances, sufficient to state a plausible claim for relief); but see Wilson , 610 F.3d at 588 (restraining autistic student by pinning arms behind his back was not excessive given student's refusal to leave classroom, use of vulgarities, and threats to have teacher arrested).
Frazier characterizes use of the box, bicycle, and calming sack as "concepts that would work to de-stimulate N.R." and claims to have learned about the box and calming sack during School District training. ECF No. 237 at 4–5. He says the bicycle was "tried as a reward for N.R. since other students liked the Bike." Id. at 5.
The Court finds N.R. has established the third and fourth factors as well. The evidence shows that as a result of Frazier's force, N.R. experienced physical, mental, and emotional pain and hunger. The evidence also shows N.R. is profoundly disabled. In this context, which involves a profoundly disabled and vulnerable child victim, the Court finds N.R.’s alleged physical and psychological injuries sufficiently severe to raise a genuine issue of material fact with regard to whether the amount of force Frazier used was obviously excessive. See, e.g., Williams v. Fulton Cty. Sch. Dist. , 181 F. Supp. 3d 1089, 1135 (N.D. Ga. 2016) (allegations that autistic child suffered scrapes, bruises, and post-traumatic stress disorder sufficient to state claim for excessive corporal punishment); M.F. , 2013 WL 4547344, at *5 (allegations that disabled child's post-traumatic stress disorder was caused by being hit with a pencil were severe enough to "state a plausible claim for relief in that they raise a reasonable expectation that discovery will reveal evidence sufficient to establish a violation of [the student's] constitutional rights").
The Court also finds N.R. has adduced sufficient evidence that Frazier "subjectively intend[ed] to use [an] obviously excessive amount of force in circumstances where it was foreseeable that serious bodily injury could result." Neal , 229 F.3d at 1075 n.3 ; see also Kirkland ex rel. Jones v. Greene Cty. Bd. of Educ. , 347 F.3d 903, 904 (11th Cir. 2003) (abusive conduct presented a "reasonably foreseeable risk of serious bodily injury"). Indeed, a jury could reasonably conclude, based on the evidence of record, that Frazier acted intentionally and with malice. See Hatfield , 534 F. App'x at 847 (finding that use of derogatory language during alleged abuse contributed to the creation of an inference of subjective malice); M.S. ex rel. Soltys v. Seminole Cty. Sch. Bd. , 636 F. Supp. 2d 1317, 1325 (M.D. Fla. 2009) (finding that the "use of unnecessary and excessive force against vulnerable children is particularly malicious"). Again, the evidence shows that Frazier threw things at ESE students because he found it "funny" and pinched them to purposely inflict pain and redirect their attention. Frazier also verbally antagonized N.R., and other ESE students, as part of his multi-year pattern of abuse. And much of Frazier's physically abusive conduct presented a risk of serious injury to the particularly vulnerable children at whom it was directed. This evidence of Frazier's conduct, coupled with the lack of evidence of a legitimate governmental interest in subjecting N.R. to any physical force, creates a genuine issue of material fact as to whether Frazier's conduct was intentional and malicious.
In fact, Frazier's practice of strapping students to the stationary bike resulted in injury on at least one occasion, when the bike tipped over and fell on top of N.R.
In sum, the Court finds there is a genuine issue of material fact with regard to whether Frazier's conduct was arbitrary, egregious, and conscience-shocking. See Neal , 229 F.3d at 1075. Although Frazier's conduct may not be as extreme as that in Neal , in which a teacher struck a student with a metal weight, rendering the student blind in one eye, the Court finds there is a genuine issue of material fact as to whether Frazier intentionally used amounts of force against N.R. that were obviously excessive under the circumstances, including the fact that N.R. is severely and profoundly disabled, and whether Frazier's conduct presented a foreseeable risk of serious bodily injury.
1. Qualified Immunity
Frazier argues that even if there is a genuine issue of material fact with regard to whether he committed a substantive due process violation, he is entitled to qualified immunity with respect to N.R.’s Fourteenth Amendment claim. The affirmative defense of qualified immunity shields public officials performing discretionary functions from suit in their individual capacities unless their conduct "violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). To receive the benefit of qualified immunity, an official must first show that he was acting within his discretionary authority when the allegedly unlawful acts occurred. Cottone v. Jenne , 326 F.3d 1352, 1357 (11th Cir. 2003). Once this showing is made, the burden shifts to the plaintiff to show the official is not entitled to qualified immunity. Id. at 1358. An official is not entitled to qualified immunity where: (1) his alleged conduct violated a federal statutory or constitutional right; and (2) the right was clearly established at the time of the violation. Id. A right is "clearly established" if "it would be clear to a reasonable [public official] that his conduct was unlawful in the situation he confronted." Id. at 1359. In other words, the state of the law must have provided the official with " ‘fair warning that [his] alleged [conduct] was unconstitutional.’ " Id. (quoting Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ).
Here, it cannot be reasonably disputed that the acts forming the basis of N.R.’s § 1983 claim are discretionary in nature. The burden thus shifts to N.R. to show Frazier is not entitled to qualified immunity. The Court has already found that a genuine issue of material fact exists with regard to whether Frazier's alleged abuse violated N.R.’s substantive due process right to be free from excessive corporal punishment. Thus, for purposes of qualified immunity, the Court must now determine whether N.R. has raised a genuine issue of material fact with regard to whether Frazier would have known and understood that his conduct was unconstitutional under well established law. The Court finds that he has. Indeed, the Court has little difficulty finding that a jury could readily conclude that a reasonable ESE teacher would know that pushing, slapping, punching, pinching, flicking, kicking, throwing shoes at, starving, and confining a child—for significant periods of time—to a stationary bike, cardboard box, or hot transport van interferes with that child's constitutional liberty interests. It has been clearly established for decades that this level of physically abusive conduct—arbitrary and excessively severe corporal punishment of public school children, particularly developmentally disabled students—violates the students’ constitutional rights. See Sandin v. Conner , 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (citing Ingraham , 430 U.S. at 674, 97 S.Ct. 1401 ); see also Kirkland , 347 F.3d at 905 ; Hatfield , 534 F. App'x at 847 ; and Neal , 229 F.3d at 1075. The Court thus finds there is a genuine issue of material fact as to whether Frazier is entitled to qualified immunity with respect to N.R.’s § 1983 claim.
A. State Claims
N.R. brings state law claims against Frazier for (1) violation of the rights of a developmentally disabled person under Fla. Stat. § 393.13, (2) negligence, and (3) battery. In his motion for summary judgment, Frazier argues he is entitled to summary judgment on each claim, addressing the merits of the battery claim and asserting official immunity with regard to all of the state law claims.
1. Battery
To maintain a claim for the tort of battery under Florida law, a plaintiff must show that the defendant intentionally inflicted harmful or offensive contact on another person. See Quilling v. Price , 894 So. 2d 1061, 1063 (Fla. 5th DCA 2005) ; Chorak v. Naughton , 409 So. 2d 35, 39 (Fla. 2d DCA 1981). "To establish the required intent to commit battery, the plaintiff must show that defendant exhibit[ed] a deliberate intent to injure or engage[d] in conduct which [wa]s substantially certain to result in injury." Rubio v. Lopez , 445 F. App'x 170, 175 (11th Cir. 2011) (citing D'Amario v. Ford Motor Co. , 806 So. 2d 424, 438 (Fla. 2001) ). For the same reasons the Court finds there is a genuine issue of material fact with regard to N.R.’s excessive corporal punishment claim, the Court finds there is a genuine issue of material fact with regard to his state law battery claim. Again, the evidence shows Frazier inflicted harmful and offensive contact on N.R. on numerous occasions. And, as discussed above, the evidence is sufficient to create a genuine issue of material fact as to whether the conduct was substantially certain to result in injury, particularly given the profound nature and extent of N.R.’s disabilities.
2. Official Immunity
As indicated above, Frazier asserts the defense of official immunity in response to all of N.R.’s state law claims, pursuant to Fla. Stat. § 768.28(9)(a). Under this provision, state officers, employees, and agents are immune from suit in their personal capacity for discretionary actions taken within the scope of their official authority. See id. This statutory immunity may be pierced only where a state official either: (1) acts outside the scope of his employment; or (2) acts "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Id. To survive a motion for summary judgment on official immunity grounds, a plaintiff must present evidence showing a good faith factual basis for concluding the state official acted either outside the scope of his employment or in bad faith. Brown v. McKinnon , 964 So. 2d 173, 175 (Fla. 3d DCA 2007). Courts construing the bad faith prong of § 768.28(9)(a) use the actual malice standard, Parker v. State Bd. of Regents ex rel. Fla. State Univ. , 724 So. 2d 163, 167 (Fla. 1st DCA 1998), which means the conduct must be committed with "ill will, hatred, spite, [or] evil intent," Reed v. State , 837 So. 2d 366, 368–69 (Fla. 2002).
Again, it cannot be reasonably disputed that the alleged abusive acts forming the basis of N.R.’s state law claims against Frazier were discretionary in nature. Hence, Frazier is entitled to statutory immunity unless N.R. can show he acted outside the scope of his employment or with actual malice. As the Court has found, the evidence shows a multi-year history of Frazier committing the same physically abusive acts and a lack of pedagogical or disciplinary justification for the acts, which at least arguably supports a finding that Frazier acted both outside the scope of his employment and in bad faith and with actual malice. The Court thus finds there is a genuine issue of material fact with regard to whether Frazier is entitled to statutory immunity.
Accordingly, for the reasons set forth above, Defendant Roy Frazier's Motion for Summary Judgment (ECF No. 237) is DENIED .
DONE AND ORDERED this 13th day of June 2022.