Opinion
Case No. 2:02CV92
November 17, 2003
ORDER AND OPINION
I. INTRODUCTION
This matter is before the Court on Defendants', The Millennium School's ("Millennium School") and Kelly Apley's ("Apley"), Motion for Summary Judgment, filed February 28, 2003. For the following reasons, the Court GRANTS the Defendants' Motion for Summary Judgment in part and DENIES it in part.
II. FACTS
Plaintiff, Shaneequa Watkins Tartt ("Watkins"), attended school during her second and third grade years at Defendant Millennium School. Plaintiffs, Rodney and Tracy Tartt ("the Tartts"), are Watkins' adoptive parents and legal guardians. The Tartts instituted this action on December 21, 2001, against Millennium School, a community school under Ohio Revised Code Chapter 3314, and Apley, who was a teacher at Millennium School in May 2001, when the events at issue took place.
During the 2000-2001 school year, Watkins was in the third grade at Millennium School, and her classroom teacher was Ms. Chapman. On May 7, 2001, however, Watkins was spending the day in Apley's classroom. Around lunchtime on that day, Apley discovered ten dollars missing from her desk. The money belonged to another student who had brought it to school for a field trip and stowed it in Apley's desk for safekeeping. Upon discovering the money was gone, Apley decided to question the three students present in her classroom when the money was discovered missing. One of those students was Plaintiff Watkins.
As Watkins and her two friends were heading from lunch to recess, Apley stopped them and requested that they accompany her to Ms. Chapman's classroom, where the girls' book bags were located. They did so, and the girls checked their book bags, but no money was found. At this point, according to Watkins' testimony, the other two girls began to cry, although she did not. They then returned, with Apley, to her classroom. Once there, Apley requested that the girls empty out their pockets; and they did, but again, no money was discovered. What Apley requested next lies at the heart of this controversy, because Plaintiffs do not contest the search of Watkins' book bag and pockets.
Defendant Apley next requested the girls to pull the waistband of their pants out, so she could check their waistlines for the missing money. All three girls complied with Defendant To succeed on a claim, the plaintiff must show that: (1) a person (2) acting under color of state law (3) deprived her of her rights secured by the United States Constitution or its laws. Waters v. City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001). By its terms, however, § 1983 creates no substantive rights; it merely provides remedies for deprivations of established rights. See Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (citation omitted).
There is some disparity in the way the parties each characterize this event, and the excerpted portions of Watkins' deposition, submitted as an Exhibit to the parties' motions, do not clarify the matter. Defendants claim "Apley asked Watkins and the other two students to turn over her [sic] waistband," whereas Plaintiffs describe that Defendant Apley "directed each student to pull open their [sic] pants to determine whether the money was hidden in their [sic] underwear." In her deposition, Plaintiff Watkins repeats that she "had to check [her] pants," and responds affirmatively to the question "And [Apley] looked in your pants?" In response to questioning during deposition as to "when you say `open,' did you just kind of pull them out away from your waist?" Watkins responded "yes."
The Court believes there is a difference between Apley requesting the girls simply to turn down their waistbands, as opposed to her requesting the girls to pull open their pants, underwear and all, and then proceeding to look directly at the girls' private areas. For purposes of summary judgment, however, even in the light most favorable to Plaintiffs, the facts before this Court
Defendants do not dispute that Apley was a person acting under color of state law. They contest, however, that Apley deprived Watkins of her rights secured by the United States Constitution. Plaintiffs claim Apley violated Watkins' Fourth Amendment rights. The Fourth Amendment of the United States Constitution provides, in part, "[t]he right of people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV.
The constitutional jurisprudence is well-established that school officials are subject to the mandates of the Fourth Amendment. New Jersey v. T.L.O., 469 U.S. 325, 333 (1985). Even on school property, students have legitimate expectations of privacy. Id. at 339. The Supreme Court first addressed the extent of a student's Fourth Amendment rights in New Jersey v. T.L.O. Although holding that the Fourth Amendment's prohibition against unreasonable searches and seizures applied to students, the Court refused to require teachers and administrators to have probable cause prior to a search. Instead, in T.L.O., the Court set forth a two-part test to determine whether a student search complied with constitutional dictates. First, the search must be justified at its inception. If it is, then the second prong requires that the search also be reasonably related in scope to the circumstances justifying it. Id. at 341.
Even before the Supreme Court's decision in T.L.O., however, the Sixth Circuit cautioned that "federal courts should not become entwined in the day to day decision making of teachers and school administrators. The responsible school official must be afforded the necessary discretion to carry out his duties." Tarter v. Raybuck, 742 F.2d 977, 983 (1984). And, again, after T.L.O., the Sixth Circuit noted, upon,
[a] thorough review of T.L.O., the [Supreme] Court was careful to protect a school official's right to make discretionary decisions in light of the knowledge and experience of the educator and the information presented to him or her at the time such decision was made. Like police officers, school officials need discretionary authority to function with great efficiency and speed in certain situations, so long as these decisions are consistent with certain constitutional safeguards. To question an official's every decision with the benefit of hindsight would undermine the authority necessary to ensure the safety and order of our schools.Williams by Williams v. Ellington, 936 F.2d 881, 886 (6th Cir. 1991). With that background in mind, the Court first must determine whether Defendant Apley's search of Plaintiff Watkins was justified at its inception.
1. "Justified at its Inception" Analysis under T.L.O.
A search is justified at its inception "`when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.'" Id. at 886 (citing T.L.O., 469 U.S. at 342). Whether there are "reasonable grounds" requires an inquiry, first, into whether individualized suspicion was a necessary prerequisite to the search. In T.L.O., the Supreme Court expressly declined to address the issue of whether individualized suspicion always is required to meet the reasonableness test for student searches, but it did state,
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."T.L.O., 469 U.S. at 342 (citing Delaware v. Prouse, 440 U.S. 648, 654-655 (1979)).
In a later case not involving school children, the Supreme Court in Skinner v. Ry. Labor Executives' Ass'n, did reason that "a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 624 (1989) (citation omitted). According to the Skinner court, then, whether individualized suspicion is necessary requires a balancing of plaintiff's and defendant's interests. Hence, to determine whether individualized suspicion was necessary in this case requires the Court to balance Plaintiff Watkins' privacy interests against the interests of Defendants.
In addressing this issue, both parties rely on the Eleventh Circuit's decision in Thomas v. Roberts, 261 F.3d 1160 (2001). In Thomas, the Court considered the unique situation where some students were subjected to strip searches, but one student was not. There, fifth-grade boys were required3 to pull down their pants and underwear to their ankles, and girls were made to drop their pants, raise their dresses and skirts, and, in some cases, remove their bras and expose their breasts. Id. at 1164. The court concluded that in the instances where students were required to remove their clothing, individualized suspicion was necessary, but not in the instance of the student not subjected to a strip search. Plaintiffs, therefore, argue the facts of this case are more akin to the Thomas strip searches, whereas the Defendants claim the facts are more like the student who was not required to remove his clothing in Thomas, where the court found individualized suspicion was not necessary.
Ostensibly, the search of Plaintiff Watkins is distinguishable from the strip searches in Thomas. Watkins was not asked to strip off her clothing. The Eleventh Circuit, under circumstances where the students were required to strip down, had no difficulty concluding that the balancing test required individualized suspicion.
On the other hand, construing the evidence in the light most favorable to Plaintiffs, the facts of this case also are sufficiently distinguishable from the Thomas student who was not required to remove his clothing. That student, Lenard Grace, testified that the school official made him pull out his pants pockets and loosen his belt, after which the official shook Lenard's pants. Id. at 1169. There was no evidence in Thomas, however, that the official looked into Lenard's pants. In contrast, Watkins testified that while Apley did not touch her, Apley did look into her pants on both occasions, once in the presence of the other two girls, and again in the supply closet when Plaintiff was alone with Apley.
In applying the Skinner balancing test, the Eleventh Circuit was adamant that, "there is no question that schoolchildren retain a legitimate expectation of privacy in their persons, including an expectation that one should be able to avoid the unwanted exposure of one's body, especially one's `private parts'." Id. at 1168. It concluded the students' privacy interests, under those circumstances, outweighed the interests of the school officials. Of particular relevance to this case, it stated,
A student's theft of another student's money, while possibly a petty offense outside of the classroom, could seriously impact a teacher's ability to maintain a safe and effective learning environment. School officials also have a significant interest in assuring that children do not receive the message that stealing is acceptable behavior. However, there is no reason to believe that the government's interests in maintaining classroom discipline and promoting moral development would have been jeopardized if [the school officials] were required to possess individualized suspicion before forcing the children to remove their clothing.Id. at 1169.
This Court agrees with the Thomas court's rationale. Although Plaintiff Watkins was not required to remove her clothing, Plaintiffs have offered evidence that she was required to expose the private areas of her body underneath her pants. Assuming Watkins was wearing underwear, a missing ten dollars still does not justify such an intrusion, absent individualized suspicion. In comparison, the Millennium School's interests in maintaining school order, disciplining for violation of school rules, and instilling values against theft would not have been jeopardized by the requirement of individualized suspicion.
Notably, this case does not present circumstances warranting urgency and quick response by school officials, which has concerned other courts. It was cases of suspected drug use and gun possession, for example, that worried the Sixth Circuit when it said, "[l]ike police officers, school officials need discretionary authority to function with great efficiency and speed in certain situations, so long as these decisions are consistent with certain constitutional safeguards. To question an official's every decision with the benefit of hindsight would undermine the authority necessary to ensure the safety and order of our schools." Williams, 936 F.2d at 886 (emphasis added). The Court in Thomas also recognized this distinction. It explained, noting the difference between those cases and the petty theft issue before it,
This case is unlike [those cases], in which a school district was faced with a seemingly intractable problem of students using dangerous narcotics in and around school. Nor is this a case where, for example, school officials receive information that an unidentified student may be carrying a weapon or other dangerous article on school property, therefore requiring a generalized search to avoid an immediate threat of physical harm to students, faculty, or staff. There has simply been no showing here that important government interests were in such jeopardy that an intrusive mass search was permissible.
The theft often dollars obviously is distinguishable from a student suspected of drug use or weapon possession. Under the circumstances here, the Court concludes Defendant Apley needed reasonable suspicion for the initial search of Plaintiff Watkins, but individualized suspicion for the additional search conducted in the supply closet.
The privacy interests of the initial search, as compared to the supply-closet search, are distinguishable and more minimal. Plaintiffs have offered evidence that Watkins and the other two girls were asked to turn down their waistbands. Such a request is not unreasonable in light of the fact that they were the only students present in Apley's classroom when the money was discovered missing and they could have been hiding the money on the inside of their waistbands. As required by T.L.O., Defendant Apley had reasonable grounds for suspecting that such a search would turn up the money. Furthermore, the presence of the other two girls provided a safeguard in the form of two other witnesses.
Conversely, Defendant Apley's supply-closet search does not pose the situation contemplated by the T.L.O. Court when it explained, "[e]xceptions 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.'" T.L.O., 469 U.S. at 342 (emphasis added) (citing Delaware v. Prouse, 440 U.S. at 654-655). Watkins' privacy interests were not minimal in the supply-closet search. Defendant Apley took Watkins away from her peers, alone, and into a supply closet, asked her to pull open her pants a second time, and then proceeded to look into them. In addition, although there were "other safeguards" available, namely Defendant Millennium School's Policy 425, it is undisputed that Defendant Apley did not comply with that Policy. The school's interests, however, would not have been jeopardized if Defendant Apley had taken the time to get the Chief Executive Officer to conduct the search in her presence, as required by Policy 425. Defendant Apley's noncompliance subjected Plaintiff Watkins' privacy interests to Defendant Apley's sole discretion, which was what the Supreme Court feared in T.L.O.
Upon application of the Skinner balancing test here, it is evident that the interests of the Defendants in maintaining school order and instilling moral values against theft cannot outweigh Watkins' privacy interests. Defendant Apley was required to have individualized suspicion prior to the additional, supply-closet search of Watkins, and Defendants have provided no evidence that Defendant Apley had any. Therefore, Plaintiffs have presented a genuine issue of material fact suggesting that this search was not justified at its inception.
2. Qualified Immunity Analysis
Even if the search was not justified at its inception and, therefore, may have been unreasonable under the Fourth Amendment, Defendant Apley will not be liable if she is entitled to qualified immunity. Indeed, government officials sued in their individual capacities can seek qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity extends to individuals performing discretionary functions, unless their actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. A right is clearly established if "a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
"[W]hether an official . . . may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken." Id. at 639 (citations omitted). In elaborating on "clearly established," the Supreme Court stated in Anderson v. Creighton that,
[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.Id. at 635.
In accord, the Sixth Circuit reiterated in Williams by Williams that, "the appropriate question is whether Defendants believed, as reasonable officials under the same circumstances, [that their] conduct was lawful and did not violate any constitutional rights that were clearly established at the time of the conduct at issue." 936 F.2d at 885.
The Sixth Circuit created a three-part test to determine whether a defendant is entitled to qualified immunity. Pursuant to that test, the Court is to examine: (1) whether the facts taken in the light most favorable to plaintiff could establish a constitutional violation; (2) whether the right was a "clearly established" right of which any reasonable officer would have known; and (3) whether the official's actions were objectively unreasonable in light of that clearly established right. Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc).
Applying the Williams test, the Court has already determined that a constitutional violation may have occurred. The next issue then is whether the right was "clearly established" such that a reasonable official would have known about it. In this case, a reasonable teacher should have known that students have Fourth Amendment rights against unreasonable searches and seizures. The Supreme Court decided T.L.O. in 1985, clarifying that the Fourth Amendment applies to searches conducted by school officials. 469 U.S. at 336-37. Even before T.L.O., the Sixth Circuit in Tarter v. Raybuck held,
[i]t is beyond peradventure that school children do not shed their constitutional rights at the school house gate. It is well recognized that school officials are subject to constitutional restraints as state officials. School officials, employed and paid by the state and supervising children, are agents of the government and are constrained by the Fourth Amendment.
742 F.2d at 981. Finally, in the case at bar, Defendant Millennium School's own policy proscribed unreasonable searches and seizures. Thus, the second prong of the Williams test also has been met.
The third prong — whether the official's actions were objectively unreasonable in light of clearly established rights — is the most contentious because there are no comparable cases such that it could be said that Defendant Apley should have understood that what she was doing violated Plaintiff Watkins' privacy rights. Even Thomas, to the extent that it is analogous, was decided after the events in question took place. However, the Williams test is in accord with Anderson v. Creighton, where the Supreme Court considered not whether the defendant should have known, but whether the official's actions were "objectively unreasonable" in light of the clearly established right.
This Court finds that Plaintiffs have presented a genuine issue of material fact regarding whether Defendant Apley is entitled to qualified immunity. As explained by the Court in Anderson v. Creighton, the official is not protected by qualified immunity just because this very action previously has not been held unlawful. 483 U.S. at 635. A reasonable jury could find Defendant Apley acted objectively unreasonable in requesting Plaintiff Watkins to accompany her alone, and into a supply closet, to conduct a second search, despite having no apparent basis to search further. A reasonable jury also could conclude that Defendant Millennium's School Policy 425 put Apley on notice that her actions in contravention of that policy would be objectively unreasonable. Hence, the Court DENIES Defendants' Motion on Plaintiffs' § 1983 claim.
C. Intentional Infliction of Emotional Distress Claim
Plaintiffs claim Apley intentionally inflicted emotional distress upon Watkins. Defendants argue simply that Plaintiffs cannot prove the elements of a claim for intentional infliction of emotional distress. Defendant Apley's conduct, they contend, "did not rise to the required level of extreme and outrageous conduct." Plaintiffs retort that Defendant Apley's conduct was outrageous and that the question of its degree is for the jury, and not this Court, to determine.
To prove a claim of intentional infliction of emotional distress, the plaintiff must show that the defendant intentionally or recklessly caused her serious emotional distress by extreme and outrageous conduct. McNeil v. Case W. Reserve Univ., 664 N.E.2d 973, 975 (Ohio 1995) (citing Yeager v. Local Union 20, 453 N.E.2d 666 (Ohio 1983)). The behavior complained of must go beyond the intentionally tortious or even the criminal. Yeager, 453 N.E.2d at 671. The conduct must be so extreme and outrageous as "`to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. at 671 (quoting Rest.2d of Torts § 46, cmt. d (1965)).
The emotional distress allegedly suffered must be serious. Id. Serious emotional distress may be found where a reasonable person would be unable to cope adequately with the mental distress engendered by the circumstances of the incident. Miller v. Currie, 50 F.3d 373, 378 (6th Cir. 1995) (citation omitted). Serious emotional distress may not be found, however, where the plaintiff fails to show she sought medical or psychiatric help or, at least then, she must show that she was unable to function in daily life. Miller v. City of Columbus, 920 F. Supp. 807, 824 (S.D. Ohio 1996) (citations omitted).
In order to defeat a motion for summary judgment on a claim of intentional infliction of emotional distress, the plaintiff must present evidence sufficient to create a genuine issue of material fact as to the defendant's behavior and the severity of the injury suffered. McNeil, 664 N.E.2d at 975-76; see Uebelacker v. Cincom Sys., Inc., 549 N.E.2d 1210, 1220 (Ohio Ct.App. 1988) (finding that the plaintiff raised a genuine issue of material fact as to his emotional distress when he submitted an affidavit from his wife detailing the various symptoms of his distress). And, contrary to Plaintiffs' argument, "[i]t is well accepted that intentional infliction of emotional distress claims may entirely appropriately be dealt with on summary judgment . . ." Miller v. Currie, 50 F.3d at 377-78. A district court may find, as a matter of law, that certain conduct does not rise to the level of outrageousness required to state a claim for intentional infliction of emotional distress. Id. at 377. Moreover, "[a] court may determine pretrial if the plaintiff has supported a claim by determining whether the emotional distress alleged is serious as a matter of law." Miller v. City of Columbus, 920 F. Supp. at 824.
For reasons already set forth, as a matter of law, Defendant Apley's conduct was not so outrageous as to be deemed "atrocious, and utterly intolerable in a civilized community," especially in comparison to the conduct of school officials in other cases.
As for emotional distress, Plaintiffs have submitted no evidence documenting any emotional distress. Plaintiffs contend only, in their Memorandum in Opposition, that "most parents of eight year old girls would be shocked and outraged if their child was subjected to Defendant Apley's conduct." Assuming, arguendo, that were true, Plaintiffs point to no evidence that Rodney and Tracy Tartt, themselves, were shocked and outraged. "Mere allegations" are insufficient to survive a motion for summary judgment. Although not cited to in their Memorandum in Opposition, Mr. Tartt states in his deposition that Plaintiff Watkins was "upset" and that he was "angry." But, such statements do not amount to even a mere "scintilla" of evidence. Being upset and angry is not illustrative of serious emotional distress, without more.
The other evidence before this Court is Mr. Tartt's admission that he and Mrs. Tartt did not take Plaintiff Watkins to be examined after she told them about the incident. As stated above, though, serious emotional distress cannot be found where the plaintiff did not seek medical or psychiatric help. Miller v. City of Columbus, 920 F. Supp. at 824. Moreover, Plaintiff Watkins' deposition testimony establishes that she had no difficulty functioning after the incident during the rest of the school day. Such evidence does not establish a genuine issue of material fact that she has been unable to function in her daily life.
The Court, consequently, GRANTS Defendants' Motion as to Plaintiffs' claim of intentional infliction of emotional distress against Defendant Apley.
D. Respondeat Superior Claim
Because the Court concluded that Plaintiffs have not presented genuine issues of material fact regarding either their assault or intentional infliction of emotional distress claims, Defendant Millennium School, likewise, cannot be liable for these two claims under the theory of respondeat superior. Therefore, it is unnecessary for the Court to consider whether Defendant Millennium School is immune from liability pursuant to Chapter 2744.V. CONCLUSION
Based on the foregoing analysis, Defendants' Motion is GRANTED as to Plaintiffs' assault and intentional infliction of emotion distress claims against Defendant Apley and as to Plaintiffs' respondeat superior claim against Defendant Millennium School. However, Defendants' Motion regarding Plaintiffs' claim under 42 U.S.C. § 1983 and the Fourth Amendment is DENIED.