United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1241
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Taci Mathers, Individually and as, *
Next Friend for J.S.J., a minor, *
*
Appellant, *
*
v. *
*
Patricia Wright, *
*
Appellee. *
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Appeals from the United States
No. 10-1242 District Court for the
___________ Western District of Missouri.
Taci Mathers, *
*
Appellee, *
*
v. *
*
Patricia Wright, *
*
Appellant. *
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Submitted: November 17, 2010
Filed: April 11, 2011
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Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Taci Mathers, mother and next friend of J.S.J., sued Patricia Wright, J.S.J.’s
fifth grade teacher. Mathers alleged that Wright had violated J.S.J.’s due process and
equal protection rights, as well as rights protected under state law and the Individuals
with Disabilities Education Act. Mathers also asserted a First Amendment claim on
her own behalf, alleging that Wright continued to mistreat J.S.J. in retaliation for
complaints Mathers lodged with school officials. The district court dismissed all but
the equal protection claim. Mathers appeals. For the reasons outlined below, we
dismiss her appeal for lack of jurisdiction. Wright cross appeals, contending that the
district court erred in denying her qualified immunity. We affirm the denial of that
claim.
I. Background
On appeal from dismissal under Federal Rule of Civil Procedure 12(b)(6), we
accept as true the factual allegations contained in the complaint and draw all
reasonable inferences in favor of the nonmoving party. Noble Sys. Corp. v. Alorica
Central, LLC, 543 F.3d 978, 981 (8th Cir. 2008); United States ex rel. Joshi v. St.
Luke’s Hosp., Inc., 441 F.3d 552, 555-56 (8th Cir. 2006).
J.S.J. suffers from permanent or long-term impairments and is educationally
disabled. In the fall of 2005, she was a student in Wright’s fifth grade class. Mathers
contends that Wright singled out J.S.J. for mistreatment because of her disability and
that this mistreatment continued throughout the school year. Count one of the
complaint alleges that Wright deprived J.S.J. of her constitutional rights in violation
of 42 U.S.C. §1983. Specifically, Mathers alleges that Wright (1) refused to teach
J.S.J., allowing her to play instead; (2) held J.S.J. back from recess and mandatory fire
drills and assigned a classmate to watch her while the rest of the class took recess;
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and (3) forced J.S.J. to crawl on the floor. The district court interpreted count one to
encompass two potential foundations for a viable § 1983 claim: substantive due
process and a class-of-one equal protection claim. The second count of the complaint
alleges that Wright continued to mistreat J.S.J. after Mathers complained to school
officials and thereby violated Mathers’s First Amendment right to free speech.
The district court dismissed the substantive due process claim, concluding that
Mathers had failed to exhaust her administrative remedies as required under the
Individuals with Disabilities in Education Act, 20 U.S.C. §1400. In the alternative,
it held that the claim failed as a matter of law because the facts alleged neither
implicated a fundamental right nor shocked the conscience. The district court also
dismissed the First Amendment claim, concluding that the facts alleged were
insufficient to establish Mathers’s retaliation theory. The district court preserved the
equal protection claim, however, after concluding that Mathers had made out a
cognizable class-of-one claim that withstood Wright’s challenge under Rules 12(b)(6)
and 8(a)(2). Finally, the district court rejected Wright’s contention that she was
entitled to qualified immunity on all claims. Accordingly, following the district
court’s order, all but the equal protection claim had been dismissed.
II.
Mathers seeks to appeal from the dismissal of her substantive due process and
First Amendment claims. We conclude that the appeal is not properly taken because
the order in question dismissed some, but not all, of the claims alleged in the
complaint and therefore is not final under 28 U.S.C. § 1291.
An order dismissing some but not all claims is not final and not immediately
appealable. See, e.g., Reinholdson v. Minnesota, 346 F.3d 847 (8th Cir. 2003). Such
an order may be appealed, however, if certain conditions enumerated in Rule 54(b)
or 28 U.S.C. § 1292(b) have been met. Rule 54(b) provides:
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When an action presents more than one claim for relief—whether as a
claim, counterclaim, crossclaim, or third-party claim— . . . the court may
direct entry of a final judgment as to one or more, but fewer than all,
claims . . . only if the court expressly determines that there is no just
reason for delay.
Here, Mathers did not seek, much less obtain, a Rule 54(b) certificate that satisfies
these conditions.
Nor did Mathers seek a certificate of appealability under 28 U.S.C. § 1292(b),
another exception to the final judgment rule. Reinholdson, 346 F.3d at 849. Under
28 U.S.C. § 1292(b), we may assume jurisdiction over an appeal from an
interlocutory order at our discretion if the district court issuing the order is of the
opinion that “such order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation[.]” Because
the judgment was not final and Mathers failed to obtain a certificate under either Rule
54(b) or 28 U.S.C. §1292(b), we lack jurisdiction to hear her appeal.
III.
Wright cross appeals, contending that the district court erred in finding that she
was not entitled to qualified immunity. Because a district court’s denial of a motion
to dismiss based on qualified immunity is immediately appealable, the cross appeal
is properly before us. Schatz Family ex rel. Schatz v. Gierer, 346 F.3d 1157, 1159
(8th Cir. 2003) (citing Behrens v. Pelletier, 516 U.S. 299, 307 (1996)).1
1
After both parties had submitted briefs pursuant to this appeal but before we
heard oral argument, Mathers filed a motion to dismiss Wright’s appeal or to strike
her brief on the grounds that Wright had failed to comply with Rule 28 of the Federal
Rules of Appellate Procedure. In essence, Mathers asked that we sanction Wright for
her alleged failure to cite to the record in support of her arguments on appeal. We
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We review de novo the denial of a motion to dismiss, taking all allegations in
the complaint as true. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588,
590 (8th Cir. 2004). To prevail at this stage, Wright must show that she is entitled
to qualified immunity on the face of the complaint. Bradford v. Huckabee, 394 F.3d
1012, 1015 (8th Cir. 2005). Qualified immunity is “an immunity from suit rather
than a mere defense to liability” and “is effectively lost if a case is erroneously
permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The inquiry
is one of law, not fact, and is to be decided at the earliest possible stage of the
litigation. Bridgewater v. Caples, 23 F.3d 1447, 1449 (8th Cir. 1994) (citation
omitted).
A state official sued in her individual capacity is entitled to qualified immunity
so long as her conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457
U.S. 800 (1982). A right is clearly established when “the contours of the right are
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In Heidemann v. Rother, we held that school officials who used a blanket as
a binding restraint of a disabled student on the advice of a licensed school therapist
did not violate the student’s equal protection rights because the restraint technique
was not “beyond the scope of professionally acceptable choices.” 84 F.3d 1021, 1031
(8th Cir. 1996). We noted that even if such conduct had violated the student’s equal
protection rights, the defendants would be entitled to qualified immunity unless a
reasonable official would have recognized that the conduct constituted a violation.
Id. at 1029. Accordingly, we consider (1) whether Wright’s conduct went beyond the
scope of professionally acceptable choices and thereby violated J.S.J’s equal
find no merit to this motion, and thus we deny it.
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protection right; and (2) whether a reasonable teacher in Wright’s position would
understand that such conduct violates that right.
Mathers contends that she has alleged a violation of the Equal Protection
Clause by stating a valid class-of-one claim. A class-of-one claim is stated when a
plaintiff alleges that a defendant intentionally treated her differently from others who
are similarly situated and that no rational basis existed for the difference in treatment.
See Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000); Costello v. Mitchell Pub.
Sch. Dist. 79, 266 F.3d 916 (8th Cir. 2001). More recently, in Engquist v. Oregon
Department of Agriculture, 553 U.S. 591(2008), the Supreme Court delineated the
outer limits of this cause of action when it concluded that class-of-one claims are not
cognizable in the context of public employment. It reasoned that this categorical
exclusion was appropriate in light of the nature of employment decisions:
There are some forms of state action, however, which by their nature
involve discretionary decisionmaking based on a vast array of
subjective, individualized assessments. In such cases the rule that people
should be “treated alike, under like circumstances and conditions” is not
violated when one person is treated differently from others, because
treating like individuals differently is an accepted consequence of the
discretion granted. In such situations, allowing a challenge based on the
arbitrary singling out of a particular person would undermine the very
discretion that such state officials are entrusted to exercise.
Id. at 603. We are mindful that many decisions in education, like those in the
employment context, may well be based on subjective factors. Engquist underscores
the importance of context in determining whether the alleged intentional disparate
treatment is actionable or rather a permissible exercise of discretion. Thus, it is
within the context of the classroom setting of this case that we review Mathers’s
allegations that, on account of Wright’s irrational and arbitrary animus toward J.S.J.,
she intentionally treated J.S.J. differently from other students in Wright’s classroom.
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Wright contends that this allegation is insufficient as a matter of law because Mathers
must allege disparate treatment as between J.S.J. and other disabled students.
Wright’s theory would have some force had Mathers’s allegations been
somehow specific to disabled students and exclusive of the general student
population. See, e.g., Scruggs v. Meriden Bd. of Educ., 2006 WL 2715300 (D. Conn.
Sept. 22, 2006) (concluding that plaintiff had failed to allege that her learning
disabled son had been treated differently from other learning disabled students who
were also harassed by classmates and had therefore failed to establish an equal
protection violation). But Mathers is not making that type of claim. She alleges that
Wright singled out J.S.J. from other students in her class. These students are
similarly situated by virtue of being taught by Wright in the same classroom. It is
J.S.J.’s experience as a student as such, and not her status as a disabled student, that
defines the ground of comparison on which her equal protection claim rests. J.S.J.’s
disability is significant only in that it allegedly triggered the disparate treatment.
Accordingly, the record does not support Wright’s contention that Mathers failed to
identify a class of similarly situated individuals.
By refusing to teach J.S.J., isolating her during recess and fire drills, and
making her crawl on the floor, Wright treated J.S.J. differently from other students
in her classroom. On the face of the complaint, we discern no rational basis for this
disparate treatment, nor can we infer that Wright suffered a lapse of professional
judgment. See Bridgewater, 23 F.3d at 1449 (noting that “the qualified immunity
standard gives ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law”) (citation omitted). Indeed,
Mathers claims the opposite: that the mistreatment did not arise from educational or
safety concerns, but from personal animus against J.S.J. because she was disabled.
Thus, Wright’s conduct exceeded the scope of professionally acceptable choices and
was not discretionary. See Hanes v. Zurick, 578 F.3d 491, 496 (7th Cir. 2009)
(denying qualified immunity to police officers sued under a class-of-one theory and
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concluding that “[t]he officer motivated by malice alone is not exercising discretion
and is not weighing the factors relevant to the officer’s duties to the public”). These
factors all support the conclusion that, under the facts alleged, a constitutional
violation of J.S.J.’s equal protection rights occurred.
Wright complains that the district court erred in emphasizing her subjective
intent in its qualified immunity analysis, particularly with respect to its finding of
malice. The subjective intent of the actor is generally irrelevant to the objective
reasonableness test at the heart of the qualified immunity analysis. Harlow, 457 U.S.
at 800. Here, however, the actor’s subjective intent is relevant to determine whether
the mistreatment was intentional, as required to state a cognizable class-of-one claim.
See El-Crawford v. Britton, 523 U.S. 574, 588-89 (1998) (recognizing that evidence
of malice or improper motive, while generally irrelevant to the reasonableness prong
of qualified immunity analysis, may be necessary to establish that a constitutional
violation occurred when it is an element of the constitutional claim). To the extent
that the district court considered Wright’s subjective intent, it did so in determining
whether a constitutional violation occurred, not whether the right at issue was clearly
established. Accordingly, Wright’s objection that the district court improperly
emphasized subjective intent fails.
Moreover, the district court’s repeated references to malice are understandable
when considered in the context in which they were made. The Supreme Court first
recognized the class-of-one claim in Olech in 2000. Other circuits have interpreted
Olech to require malice or animus as an element of a viable class-of-one equal
protection claim.2 Although we have not heretofore held that malice is an element of
2
In Olech, Justice Breyer’s concurrence took the position that the class-of-one
claim was valid because it alleged an “extra factor”—that the official took “vindictive
action” or acted with “illegitimate animus” against the claimant. Id. at 566. Other
circuits have adopted Justice Breyer’s position in requiring animus or vindictiveness,
rather than mere arbitrariness, as an element of a valid class-of-one claim. See
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a class-of-one claim, see Costello, 266 F.3d at 916, we conclude that the district court
did not err in considering the existence of malice on Wright’s part. To the contrary,
the court’s finding that Wright’s conduct was malicious supports its rationale for
concluding that Mathers had pleaded her class-of-one claim with sufficient detail to
withstand Wright’s 12(b)(6) and 8(a)(2) motion.
We next consider whether the equal protection right at issue was clearly
established. For a right to be clearly established, “[t]here is no requirement that the
very action in question has previously been held unlawful,” Vaughn v. Ruoff, 253
F.3d 1124, 1129 (8th Cir. 2001) (quotation omitted), nor that there be “a case decided
on all fours with the present factual circumstances.” Wilson v. Lawrence Cnty., 260
F.3d 946, 951 (8th Cir. 2001). Rather, we need conclude only that, in light of pre-
existing law, the unlawfulness of the conduct at issue was apparent. Anderson, 483
U.S. at 640.
As pointed out in Engquist, the Equal Protection Clause has long prohibited
arbitrary classifications. 553 U.S. at 598 (describing the core concern of the Equal
Protection Clause as providing a “shield against arbitrary classifications”); Olech, 528
U.S. at 564 (stating that the purpose of equal protection “‘is to secure every person
within the State’s jurisdiction against intentional and arbitrary discrimination . . . .’”
(quoting Sioux City Bridge Co. v. Dakota Cnty., 260 U.S. 441 (1923)). Likewise, “it
is well established that ‘the Equal Protection Clause protect[s] persons, not groups.’”
Jennings v. City of Stillwater, 383 F.3d 1199, 1211 (10th Cir. 2004) (noting that the
Second, Seventh, Tenth, and Eleventh Circuits have done so); but see Bell v.
Duperrault, 367 F.3d 703, 711-13 (7th Cir. 2004) (Posner, J., concurring) (observing
that the case law among the circuits following Olech is equivocal on whether malice
is an essential element and pointing out that “personal ill will is not the essential
criterion of a meritorious class-of-one suit” and that “[i]t is enough if the plaintiff can
prove that the defendant is treating similarly situated people differently for improper
(normally personal) reasons”).
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Enquist, 553 U.S. at 598 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
227 (1995)). In light of those well-established principles, we see no reason why the
prohibition of intentional, arbitrary discrimination would be any less clear in the
class-of-one context than in traditional equal protection analysis.
Thus, we conclude that it was clearly established that a school official may not
treat a student differently from her similarly situated peers when such conduct
exceeds the scope of professionally acceptable choices and stems from an improper
personal motivation. This holding is consistent with decisions from other courts that
have denied qualified immunity to a school official accused of discriminating against
a student in the absence of a rational basis to do so. See, e.g., Nabozny v. Podlesny,
92 F.3d 446 (7th Cir. 1996) (holding that reasonable officials would have known that
discrimination against student based on his sexual orientation was unlawful); see also
Weidow v. Scranton Sch. Dist., 2009 WL 2588856 (M.D. Pa. Aug. 19, 2009)
(unpublished) (denying defendant’s motion to dismiss a class-of-one claim in which
a disabled student alleged that the school did not send her transcripts to colleges to
which she had applied, as it did for all other students in her graduating class, and that
it required her to notice her home-schooled status on her applications when it required
no other home-schooled students to do so).
Our holding is narrow. Looking no further than the face of the complaint and
accepting as true all allegations therein, we conclude that the allegations regarding
Wright's treatment of J.S.J. state an equal protection violation, and we are satisfied
that a reasonable teacher in Wright's position would recognize as much. Accordingly,
Wright is not entitled to qualified immunity at this stage of the proceeding.
IV.
Mathers’s appeal is dismissed for want of jurisdiction. The order denying
qualified immunity is affirmed.
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