IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-20675
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DENNIS CAMPBELL, SR., as next friend of
Dennis Campbell, Jr.; TAMMIE CAMPBELL,
as next friend of Dennis Campbell, Jr.,
Plaintiffs-Appellants,
versus
BUTCH McALISTER; THE CITY OF SUGARLAND;
FORT BEND INDEPENDENT SCHOOL DISTRICT,
Defendants-Appellees.
________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(H-96-CV-1316)
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October 20, 1998
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The issue in this case is whether a school official’s use of
allegedly excessive force to remove a disruptive kindergarten
student from his classroom constitutes an unreasonable seizure
under the Fourth Amendment or a denial of substantive due process
under the Fourteenth Amendment. In granting summary judgment
against the plaintiff, the district court concluded that the use of
force in this case was properly analyzed under the Fourteenth
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Amendment substantive due process standard and that it was not
arbitrary or unrelated to legitimate school interests in violation
of that standard. We hold that under either Amendment, the school
official’s use of force was not a constitutional violation.
I
A
On February 28, 1994, Dennis Campbell, Jr. (“Dennis”), a
five-year-old kindergarten student at Dulles Elementary School, was
misbehaving in class. Although the parties dispute whether Dennis
was “completely out of control” or misbehaving to some lesser
extent, the summary judgment evidence clearly demonstrates that his
conduct was disruptive. At one point, Dennis refused to obey any
more of his teacher’s instructions. Feeling that she could no
longer control him, the teacher requested the assistance of the
assistant principal. Dennis, however, continued to be defiant,
refused to stand up or move, and told the assistant principal to
“shut up.”
The assistant principal then summoned the help of Mr. Oliver
McAlister, a Sugarland police officer who had recently been
assigned to the Dulles school as part of a nationwide drug
prevention program known as “D.A.R.E.” Being the only adult male
in the building at the time, McAlister was asked if he would remove
Dennis from the classroom and escort him to the principal’s office.
McAlister twice requested that Dennis get up and go with him, but
Dennis refused.
2
At this point, the accounts of what happened diverge. The
Campbells allege that McAlister “slammed [Dennis] to the floor” and
“dragged [him] along the ground to the principal’s office.” They
approximate that the distance to the principal’s office was around
200 to 300 feet. Nevertheless, in her deposition, Mrs. Campbell
conceded that Dennis did not have any scratches, bleeding, or torn
clothing. The doctor who examined Dennis the next morning
discovered some bruising under his arm, but no other injury
requiring x-rays or follow-up medical treatment. Although school
officials describe a more belligerent Dennis and a less forceful
McAlister, we will assume the truth of the Campbells’ allegations.
B
On January 24, 1996, the plaintiffs-appellants Dennis Campbell
Sr. and Tammie Campbell (the “Campbells”), as next friends of
Dennis Jr., sued McAlister, the City of Sugarland (the “City”), and
the Fort Bend Independent School District (the “FBISD”) under 28
U.S.C. § 1983, and the Fourth and Fourteenth Amendments. They
alleged that McAlister, while acting under the color of state law,
used excessive force to remove Dennis from his classroom and that
the City and the FBISD were deliberately indifferent to Dennis’s
constitutional rights.
The defendants each moved for summary judgment, which the
district court granted. In a thorough and well-reasoned opinion,
the district court determined that the Campbells failed to
establish any factual basis for extending section 1983 liability
3
for McAlister’s actions to the City or the FBISD. As to McAlister
individually, who claimed qualified immunity, the court examined
the merits of whether his conduct violated the Fourth or Fourteenth
Amendments. Based on our cases applying a substantive due process
standard to corporal punishment in schools, it concluded that the
Fourteenth Amendment was the proper mode of analyzing the excessive
force allegations in this case, not the Fourth Amendment.1
Applying a substantive due process analysis, the court pointed out
that the State of Texas provided adequate post-deprivation civil
and criminal remedies for the mistreatment of students by school
officials. Thus, it concluded, the Fourteenth Amendment claim
failed as a matter of law.
The Campbells appeal the district court’s grant of summary
judgment in favor of McAlister, but not the City or the FBISD.2
II
We review a decision to grant summary judgment de novo, using
the same standard as the district court. Ganther v. Ingle, 75 F.3d
207, 209 (5th Cir. 1996). Summary judgment is proper when there is
no genuine issue of material fact exists, and the moving party is
entitled to judgment as a matter of law. Lavespere v. Niagare
1
The court did note that, even under a Fourth Amendment
analysis, McAlister’s conduct did not result in a constitutional
violation because it was reasonable under the circumstances.
2
Because the Campbells do not raise any point of error with
respect to the resolution of their claims against the City and the
FBISD, any claims against those defendants have been waived. See
United States v. Musa, 45 F.3d 922, 925 (5th Cir. 1995).
4
Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). The
court will not weigh the evidence or evaluate the credibility of
witnesses; further, all justifiable inferences will be made in the
nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
III
The essence of the Campbells’s claim in this case is that
McAlister used excessive force to remove Dennis from his classroom.
The Supreme Court has rejected the “notion that all excessive force
claims brought under § 1983 are governed by a single generic
standard.” Graham v. Conner, 490 U.S. 386, 393 (1989). The proper
analysis “begins by identifying the specific constitutional right
allegedly infringed by the challenged application of force.” Id.
at 394. Whether the right has been violated “must then be judged
by reference to the specific constitutional standard which governs
that right.” Id.
A
Since our en banc decision in Ingraham v. Wright, 525 F.2d 909
(5th Cir. 1976), aff’d on other grounds, 430 U.S. 651 (1977), we
have consistently applied a substantive due process analysis to
claims of excessive force in the context of corporal punishment at
public schools. See, e.g., Fee v. Herndon, 900 F.2d 804 (5th
Cir.), cert. denied, 498 U.S. 908 (1990); Cunningham v. Beavers,
858 F.2d 269 (5th Cir. 1988), cert. denied, 489 U.S. 1067 (1989);
Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d 1243 (5th Cir.
5
1984); Coleman v. Franklin Parish Sch. Bd., 702 F.2d 74 (5th Cir.
1983) (per curiam). We have also applied this same analysis in the
school context to the right to be free from “state-occasioned
damage to a person’s bodily integrity,” see Doe v. Taylor Indep.
Sch. Dist., 15 F.3d 443 (5th Cir.) (en banc) (sexual molestation by
a teacher), cert. denied, 513 U.S. 815 (1994), as well as the right
to be free from “bodily restraint,” see Jefferson v. Yselta Indep.
Sch. Dist., 817 F.2d 303 (5th Cir. 1987) (student tied to chair
with a jump rope).
The Supreme Court has not yet addressed whether the use of
excessive force by public school officials against students
implicates a specific constitutional right. It has, however,
applied the Fourth Amendment to cases involving searches at public
schools. See Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995);
New Jersey v. T.L.O., 469 U.S. 325 (1985). In doing so, the Court
has made clear that the scope of the Fourth Amendment is not
limited to criminal investigations, but rather, extends generally
to searches and seizures by government actors. See T.L.O., 469
U.S. at 335.
Drawing on these cases, we and other courts have considered
claims involving allegedly unreasonable detainment of students
under the Fourth Amendment. See, e.g., Hassan v. Lubbock Indep.
Sch. Dist., 55 F.3d 1075 (5th Cir.), cert. denied, 516 U.S. 995
(1995); Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010 (7th Cir.
1995); Edwards v. Rees, 883 F.2d 882 (10th Cir. 1989). In Hassan,
6
school officials detained a sixth grader in a room as punishment
for misbehaving on a field trip. The student was locked in the
room, which contained a window and was monitored continuously, for
50 minutes until the other students could complete the field trip
tour. See 55 F.3d at 1078. Examining the case under both the
Fourth and Fourteenth Amendments, we held that the seizure was
neither unreasonable nor a violation of substantive due process
liberty interests. See id. at 1079-81.
Like the plaintiff in Hassan, the Campbells bring their
excessive force claim against McAlister pursuant to both the Fourth
Amendment’s proscription against unreasonable seizures and the
Fourteenth Amendment’s guarantee of substantive due process.
Because we found no constitutional violation under either standard,
we had no occasion to address the question whether, under Graham,
analysis of the claim in Hassan should have been confined to the
Fourth Amendment alone. Accord P.B. v. Koch, 96 F.3d 1298, 1303
n.4 (9th Cir. 1996) (“Under any standard, Koch’s alleged actions
were clearly unlawful. Thus, . . . we need not and do not resolve
the question of whether the Fourth Amendment, rather than the Due
Process Clause, protects a student from the use of excessive force
by a school official.”). We reach the same conclusion here. The
Campbells simply have not alleged conduct rising to the level of an
unreasonable seizure or a denial of substantive due process.
B
7
As the text of the Fourth Amendment indicates, “the ultimate
measure” of the constitutionality of a governmental search or
seizure is “reasonableness.” Veronia, 515 U.S. at 652; see also
T.L.O, 469 U.S. at 334. A “seizure” triggering the Fourth
Amendment’s protections occurs only when government actors have, by
means of physical force or a sufficient show of authority,
restrained an individual’s liberty. See California v. Hodari D.,
499 U.S. 621, 626, 628 (1991). Whether a given seizure meets the
reasonableness standard “‘is judged by balancing its intrusion on
the individual’s Fourth Amendment interests against its promotion
of legitimate governmental interests.’” Veronia, 515 U.S. at
652-53 (citations omitted). This reasonableness inquiry is an
objective one: “the question is whether the [government official’s]
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting [him], without regard to [his] underlying
intent or motivation.” Graham, 490 U.S. at 397.
In the public school context, the Court has gone to great
lengths to emphasize the special circumstances facing school
administrators “in maintaining discipline in the classroom and on
school grounds.” T.L.O, 469 U.S. at 339; see also Veronia, 515
U.S. at 656 (“Fourth Amendment rights, no less than First and
Fourteenth Amendment rights, are different in public schools than
elsewhere; the ‘reasonableness’ inquiry cannot disregard the
schools’ custodial and tutelary responsibility for children.”).
Given our recent rash of school shootings across the nation, what
8
the Court observed 13 years ago in T.L.O. seems as pertinent today
as ever:
Maintaining order in the classroom has never been easy,
but in recent years, school disorder has often taken
particularly ugly forms: drug use and violent crime in
the schools have become major social problems. . . .
Even in schools that have been spared the most severe
disciplinary problems, the preservation of order and a
proper educational environment requires close supervision
of schoolchildren, as well as the enforcement of rules
against conduct that would be perfectly permissible if
undertaken by an adult.
469 U.S. at 339. It is against this backdrop that we examine the
Campbells’s claim that the forcible removal their son Dennis from
his classroom amounted to an unreasonable seizure.
Even assuming the full use of force alleged by the Campbells,
the coercive nature of McAlister’s conduct in removing Dennis from
his classroom was not unreasonable under the circumstances. Dennis
had refused to leave the room or even to stand up. Repeated
requests that he voluntarily do so were met with silence or defiant
orders to “shut up.” Thus, to dislodge Dennis and maneuver him to
the principal’s office, some use of force was apparently going to
be necessary. Because of his youth, Dennis’s allegation that he
was “slammed” to the ground causes us concern. But other evidence
in the record belies any inference that, if he was thrown to the
ground, it was with unreasonable force. Deposition testimony and
the medical records of the doctor who examined Dennis make clear
that he did not suffer any significant harm as a result of the
incident. Minor bruising as a result of school discipline has
never been sufficient harm to establish a constitutional injury.
9
Compare Ingraham, 525 F.2d at 911, 917 (twenty licks with a paddle
resulting in “a painful bruise that required the prescription of
cold compresses, a laxative, sleeping, and pain-killing pills and
ten days of rest at home and that prevented [the child] from
sitting comfortably for three weeks” insufficient to establish a
constitutional harm).
The fact that less force could have been used, or that a more
appropriate punishment may have been available, is not enough to
establish that the punishment administered was unconstitutional.
See Hassan, 55 F.3d at 1081-82.3 The Fourth Amendment’s
reasonableness standard must afford school officials with a
relatively wide range acceptable action in dealing with disruptive
students. See T.L.O., 469 U.S. at 340 (“maintaining security and
order in the schools requires a certain degree of flexibility in
school disciplinary procedures, and we have respected the value of
preserving the informality of the student-teacher relationship”).
This approach is “consistent with the Supreme Court’s view ‘that
the education of the Nation’s youth is primarily the responsibility
of parents, teachers, and state and local officials, and not
federal judges.’” Wallace, 68 F.3d at 1014 (quoting Hazelwood Sch.
Dist. v. Kuhlmeier,484 U.S. 260, 273 (1988)); cf. Ingraham, 525
3
Conduct sufficient to establish an excessive force tort claim
will not necessarily be so unreasonable as to establish a viable
constitutional claim. Cf. Daniels v. Williams, 474 U.S. 327, 332
(1986) (“Our Constitution deals with the large concerns of the
governors and the governed, but it does not purport to supplant
traditional tort law in laying down rules of conduct to regulate
liability for injuries that attend living together in society.”).
10
F.2d at 917 (“it is not this court’s duty to judge the wisdom of
particular school regulations governing matters of internal
discipline”).
McAlister’s alleged efforts to subdue Dennis and move him to
the principal’s office were fairly tailored to Dennis’s admitted
misbehavior and certainly not so excessive as to be unreasonable
under the circumstances. “Events calling for discipline [in public
schools] are frequent occurrences and sometimes require immediate,
effective action.” Goss v. Lopez, 419 U.S. 565, 580 (1975). The
situation here reasonably called for immediate action. Because
McAlister’s conduct was not objectively unreasonable as a matter of
law, the district court did not err in concluding that the
Campbells failed to establish a Fourth Amendment claim.
C
We turn next to the Campbells’s claim that McAlister used
excessive force in violation of Dennis’s substantive due process
rights. Corporal punishment in public schools “is a deprivation of
substantive due process when it is arbitrary, capricious, or wholly
unrelated to the legitimate state goal of maintaining an atmosphere
conducive to learning.” Woodard, 732 F.2d at 1246). “[I]njuries
sustained incidentally to corporal punishment, irrespective of the
severity of these injuries or the sensitivity of the student, do
not implicate the due process clause if the forum state affords
adequate post-punishment civil or criminal remedies for the student
to vindicate legal transgressions.” Fee, 900 F.2d at 808; see also
11
Cunningham, 858 F.2d at 272. If, however, an excessive or abusive
use of force is wholly unrelated to legitimate school interests, it
is quite likely that no post-deprivation remedy would meet the
requirements of due process. See Doe, 15 F.3d at 451-52; id. at
461 (Higginbotham, J., concurring).
In this case, there is no question that McAlister’s use of
force to remove Dennis from his classroom were rationally related
to legitimate school interests in maintaining order. As the
district court noted, and the Campbells apparently concede, Texas
provides civil and criminal post-deprivation remedies for the
excessive use of force by school officials. Thus, the district
court correctly concluded that the Campbells’s substantive due
process claim fails as a matter of law.
IV
For the foregoing reasons, the judgment of the district court
is
A F F I R M E D.
12