FILED
United States Court of Appeals
Tenth Circuit
April 23, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
PAUL MUSKRAT, and MELINDA
MUSKRAT, as Parents and next
friends of Minor Child, J.M.,
Plaintiffs-Appellants,
v. No. 11-6194
DEER CREEK PUBLIC SCHOOLS;
KAY ROGERS, individually and in
her official capacity as an employee of
Deer Creek Public Schools; DEBBIE
STRAUGHN, individually and in her
official capacity as an employee of
Deer Creek Public Schools; JESSICA
RENAKER, individually and in her
official capacity as an employee of
Deer Creek Public Schools,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:-08-CV-01103-L)
Jon E. Brightmire, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa,
Oklahoma (Andrew D. Schwartz, Rodney C. Ramsey, and Michael D. Gray,
Ramsey and Gray, P.C., Oklahoma City, Oklahoma, with him on the briefs) for
Appellants.
Jerry A. Richardson (Kent B. Rainey and Staci L. Roberds with him on the brief)
Rosenstein, Fist & Ringold, Tulsa, Oklahoma, for Appellees Deer Creek Public
Schools, Kay Rogers and Debbie Straughn, and Mark S. Rains, Mark Rains
Attorney at Law PLLC, Jenks, Oklahoma, for Appellee Jessica Renaker.
Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Paul and Melinda Muskrat brought a civil rights action on behalf of their
disabled son against the school district where he attended school for several years
and against certain school district employees. The Muskrats alleged that the
defendants unconstitutionally subjected their son to timeouts and physical abuse.
The school district moved to dismiss, arguing that the Muskrats had not
exhausted their claims through administrative procedures established by the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1491o.
The district court denied this motion, ruling that the Muskrats had no obligation
to exhaust their claims. The case then proceeded to discovery and the defendants
eventually moved for summary judgment, arguing that no constitutional violation
occurred. The district court agreed and granted defendants’ motions.
We affirm in all respects. First, plaintiffs’ claims do not fail for lack of
exhaustion. Second, reaching the merits, the district court did not err in
concluding the defendants’ conduct did not shock the conscience, nor did it have
an obligation to evaluate the claims under the reasonableness standard of the
Fourth Amendment.
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I. Background
In reviewing a grant of summary judgment, we view the facts presented in
the light most favorable to the nonmoving parties, the Muskrats. See Dodds v.
Richardson, 614 F.3d 1185, 1191–92 (10th Cir. 2010).
A. Factual Background
1. J.M.’s Disability
Paul and Melinda Muskrat’s son, J.M., is a developmentally disabled child.
During the time period relevant to this lawsuit, J.M. was between five and ten
years old but had the mental age of a two- or three-year-old. In addition to his
mental disabilities, J.M. had impaired gross and fine motor skills, as well as
balance problems and a pattern of seizures.
J.M. attended Deer Creek Elementary School in Edmond, Oklahoma, from
2002 to 2007. Given his disabilities, he was a special education student with an
individualized education program (IEP) under the IDEA.
2. J.M.’s Timeouts
Deer Creek Elementary had a special “timeout room” attached to J.M.’s
classroom. The timeout room was small, although big enough for both a student
and teacher to fit inside. It had a light fixture and a door without a lock. The
door had a small window that was too high for children to see out of.
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At school, J.M. was known to occasionally yell, throw, kick, hit, spit, throw
tantrums, and otherwise exhibit disruptive behavior. As a result, teachers
sometimes placed him in the timeout room.
The duration of these timeouts is not clear. The school had a policy of
multiplying the student’s mental age by two to set the maximum number of
minutes a student could be in timeout on a single occasion, but the school did not
always keep track of whether its employees followed this policy. As far as the
record goes, the longest timeout J.M. endured was about four minutes. See Part
II.B.2.a, infra.
It is also unclear whether students would be left alone in the timeout room,
or whether a teacher or other staff member would remain present. In any event,
the Muskrats eventually became concerned about the use of the timeout room and
told school officials beginning in 2004 that J.M. should not be placed there. The
Muskrats said J.M. did not have the mental maturity to understand the timeout
room’s purpose and it therefore only frightened him.
In November 2005, the school modified J.M.’s IEP to prohibit placing J.M.
in a timeout room. 1 Deer Creek Elementary’s principal, Debbie Straughn,
nonetheless instructed at least one staff member (not a party here) to place J.M. in
the timeout room if needed. Deer Creek Elementary’s logs show that J.M. was
1
Defendants claim the IEP was not modified until several months later, but
we must accept the Muskrats’ version of events for present purposes.
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placed in timeout at least 30 times over the course of the 2004–05 and 2005–06
school years.
J.M. began to show increasing signs of stress during the 2005–06 school
year, including sleeplessness, vomiting, and a frequent urge to urinate. His
medical professionals also documented declining cognitive and physical
functions. His medical professionals, however, never opined at the time that
J.M.’s timeouts caused these symptoms. Nor did the Muskrats tell anyone at
school that they believed J.M.’s timeouts caused these symptoms.
Just before the start of the 2006–07 school year, J.M.’s IEP was amended to
state that school staff would neither subject J.M. to the timeout room nor place
him in a classroom with a timeout room. The school initially honored this
agreement, moving J.M. to a classroom without a timeout room. The school also
decommissioned its timeout rooms generally for the 2006–07 school year.
A couple of months into the school year, however, school officials moved
J.M. to yet another classroom. This new classroom featured a no-longer-in-use
timeout room. The Muskrats claim that simple proximity to this timeout room
caused J.M. additional anxiety.
3. Alleged Physical Abuse
The Muskrats claim that J.M. also suffered three instances of physical
abuse at the hands of school staff.
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The first instance occurred when J.M. was sitting in the cafeteria next to a
special education teacher named Jessica Renaker. According to a nearby cafeteria
worker, Renaker had a hand on J.M.’s shoulder and was attempting to calm him
down for some reason. Renaker then quickly moved that hand and struck a quick
open-handed “pop” (as the parties refer to it) on J.M.’s cheek. There was no
wind-up or notable use of force, but the cafeteria worker believed that the “pop”
was unprovoked. The record contains no evidence of continuing harm to J.M.
from this incident.
The second instance of alleged physical abuse occurred when J.M.’s
full-time aide, Kay Rogers, slapped J.M. on the arm hard enough to leave a red
mark. The record again contains no evidence of continuing harm to J.M. from
this incident.
The third instance of alleged abuse involved both Rogers and Renaker. On
one occasion, they restrained J.M. in his desk for about two minutes by standing
on either side of him, each one holding one of his shoulders so that he could not
stand up. As with the previous two incidents, the record contains no evidence of
continuing harm to J.M. from this incident.
B. Litigation History
The Muskrats took J.M. out of Deer Creek Elementary after the 2006–07
school year, and eventually out of the Deer Creek schools altogether. In October
2008, they filed suit on their own and J.M.’s behalf. They named as defendants
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Deer Creek Public Schools, Principal Straughn, Rogers, and Renaker. The
complaint primarily alleged state-law torts but also asserted a 42 U.S.C. § 1983
claim, accusing the defendants of violating J.M.’s constitutional rights. The
Muskrats’ allegations relating to injury and damages largely focused on
continuing emotional trauma and related medical expenses resulting from the
timeouts.
The defendants moved to dismiss arguing that the district court lacked
subject matter jurisdiction because the Muskrats had failed to exhaust their claims
through an administrative process established under the IDEA. The defendants
also asserted that the Muskrats’ state-law torts failed to state a claim on which
relief could be granted.
The district court rejected the defendants’ IDEA exhaustion argument but
agreed that the Muskrats state-law torts were deficient as pleaded. The district
court gave the Muskrats leave to amend. The Muskrats satisfactorily amended
and the case proceeded to discovery.
All defendants eventually moved for summary judgment, arguing that their
behavior stated no constitutional violation under a Fourteenth Amendment
“shocks the conscience” analysis. The district court agreed, entered judgment
against the Muskrats on their § 1983 claim, and declined to retain jurisdiction
over the remaining state-law causes of action.
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The Muskrats then moved under Federal Rule of Civil Procedure 59(e),
arguing that the district court had improperly dismissed the whole case because
they could still proceed under a Fourth Amendment “reasonableness” theory in
the alternative to a Fourteenth Amendment “shocks the conscience” theory. The
district court denied this motion, finding that the Muskrats had never before
asserted a Fourth Amendment theory, and it was too late to do so after the fact.
II. Analysis
The Muskrats contend the district court erred in granting summary
judgment. We proceed by first considering our subject matter jurisdiction under
the IDEA. Finding jurisdiction, we then examine the Fourteenth Amendment
claim, agreeing with the district court that the defendants’ conduct did not meet
the controlling legal standard. We conclude by rejecting the contention that the
case should be resolved under a Fourth Amendment reasonableness standard.
That argument was not properly presented and preserved below.
A. IDEA Exhaustion
The defendants moved to dismiss for lack of jurisdiction, arguing that the
Muskrats had not exhausted their claims through procedures specified in the
IDEA. The district court denied this motion but the school district raises it again
on appeal as an alternative basis to affirm the judgment.
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1. Statutory Framework
The IDEA is a federal statute that “imposes obligations on the states to
provide certain benefits in exchange for federal funds.” Ellenberg v. N.M.
Military Inst., 478 F.3d 1262, 1274 (10th Cir. 2007). A state accepting such
funding must “ensure that all children with disabilities have available to them a
free appropriate public education that emphasizes special education and related
services designed to meet their unique needs . . . .” 20 U.S.C. § 1400(d)(1)(A).
A child’s free appropriate public education must conform with his or her
individualized education program (IEP). Id. § 1401(9)(D). “The IEP is a written
statement that sets forth the child’s present performance level, goals and
objectives, specific services that will enable the child to meet those goals, and
evaluation criteria and procedures to determine whether the child has met the
goals.” Ass’n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1043 (10th Cir.
1993); see also 20 U.S.C. § 1414(d)(1)(A) (defining IEP in more detail).
If a parent objects to a school’s implementation of the IEP, the statute
entitles the parent to an “impartial due process hearing, which shall be conducted
by the State educational agency or by the local educational agency, as determined
by State law or by the State educational agency.” 20 U.S.C. § 1415(f)(1)(A). If
the parent is unsatisfied with the outcome of the due process hearing, he or she
“may appeal such findings and decision to the State educational agency.” Id.
§ 1415(g)(1).
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The IDEA requires parents to work through these administrative procedures
before suing the school: “[B]efore the filing of a civil action under [federal laws
protecting the rights of children with disabilities, such as the IDEA] seeking relief
that is also available under this subchapter, the procedures under subsections (f)
[due process hearing] and (g) [appeal] shall be exhausted . . . .” Id. § 1415(l).
2. Previous Treatment of the IDEA Exhaustion Requirement
Before addressing the district court’s disposition of the exhaustion issue,
we pause to consider whether our prior case law correctly treats IDEA exhaustion
as a jurisdictional matter. It is clear that we have done so, but it is less clear our
analysis is legally correct. See Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058,
1063 (10th Cir. 2002) (characterizing IDEA exhaustion analysis as something the
court must undertake to “satisfy itself of jurisdiction before addressing the merits
of a claim”); Urban v. Jefferson Cnty. Sch. Dist. R-1, 89 F.3d 720, 724 (10th Cir.
1996) (treating IDEA exhaustion as a matter of subject matter jurisdiction); see
also Hayes v. Unified Sch. Dist. No. 377, 877 F.2d 809, 810 (10th Cir. 1989)
(stating in the context of the IDEA’s predecessor statute that “failure to exhaust
administrative remedies is jurisdictional”). But none of these decisions actually
analyzes whether Congress intended IDEA exhaustion to be jurisdictional. Each
case instead assumes without analysis that IDEA exhaustion is jurisdictional and
proceeds under that assumption.
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The trend is toward greater precision in jurisdictional analysis. Toward this
end, the Supreme Court recently admonished the federal courts to employ the
“jurisdictional” label carefully given the important differences between
jurisdictional and non-jurisdictional requirements. We are to avoid “drive-by
jurisdictional rulings,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91
(1998), that fail to consider the careful balance between non-waivable subject
matter jurisdiction requirements and waivable “claim processing” provisions that
do not invoke our subject matter jurisdiction, Henderson v. Shinseki, 131 S. Ct.
1197, 1203 (2011); cf. Pub. Serv. Co. of N.M. v. NLRB, 692 F.3d 1068, 1076
(10th Cir. 2012) (“[W]e must be wary about the word ‘jurisdiction.’ . . . [T]he
Supreme Court has repeatedly warned lower courts against confusing
‘claim-processing rules or elements of a cause of action’ with true ‘jurisdictional
limitations.’”). 2 Although “[c]ourts do not usually raise claims or arguments on
2
See also Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1244 (2010)
(“In light of the important distinctions between jurisdictional prescriptions and
claim-processing rules, we have encouraged federal courts and litigants to
facilitate clarity by using the term ‘jurisdictional’ only when it is apposite.”
(certain internal quotation marks and citations omitted; alterations incorporated));
Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs and Trainmen Gen. Comm. of
Adjustment, Cent. Region, 130 S. Ct. 584, 596 (2009) (“Recognizing that the word
‘jurisdiction’ has been used by courts, including this Court, to convey many, too
many, meanings, we have cautioned, in recent decisions, against profligate use of
the term.” (certain internal quotation marks and citations omitted)); Eberhart v.
United States, 546 U.S. 12, 16 (2005) (per curiam) (“Clarity would be facilitated
if courts and litigants used the label ‘jurisdictional’ not for claim-processing
rules, but only for prescriptions delineating the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction) falling within a court’s
(continued...)
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their own . . . they must raise and decide jurisdictional questions that the parties
either overlook or elect not to press.” Henderson, 131 S. Ct. at 1202. Further, a
party may challenge subject matter jurisdiction at any time, even on appeal after
losing below. Id. By contrast, a party may waive or forfeit the benefit of a
nonjurisdictional rule. Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d
198, 203 (2d Cir. 2007).
Other circuits have split on whether IDEA exhaustion is jurisdictional.
Most of these decisions appear to be the sort of drive-by rulings that the Supreme
Court has cautioned against. Thus, for example, aligning with our own previous
statements about IDEA exhaustion, the Second and Fourth Circuits have simply
assumed without analysis that IDEA exhaustion is jurisdictional and proceeded on
that basis. See Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist.,
288 F.3d 478, 483 (2d Cir. 2002) (stating without analysis that “[a] plaintiff’s
failure to exhaust administrative remedies under the IDEA deprives a court of
subject matter jurisdiction”); 3 MM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523,
536 (4th Cir. 2002) (stating without analysis that “[t]he failure of the [plaintiffs]
2
(...continued)
adjudicatory authority.” (certain internal quotation marks and citations omitted;
alterations incorporated)).
3
But see Coleman, 503 F.3d at 203 (questioning Polera in light of the
Supreme Court’s recent admonitions to use the “jurisdictional” label with care).
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to exhaust their administrative remedies for [certain IDEA-related claims]
deprives us of subject matter jurisdiction over those claims”).
Most contrary decisions are no more thorough. The Seventh Circuit, for
instance, deemed IDEA exhaustion nonjurisdictional by stating simply, “A failure
to exhaust is normally considered to be an affirmative defense, and we see no
reason to treat it differently here.” Mosely v. Bd. of Educ. of City of Chicago, 434
F.3d 527, 533 (7th Cir. 2006) (citation omitted). The Eleventh Circuit has
similarly rejected jurisdictional status by briefly mentioning the availability of
exceptions like futility and inadequacy of remedy. N.B. v. Alachua Cnty. Sch.
Bd., 84 F.3d 1376, 1379 (11th Cir. 1996).
It appears that only the Ninth Circuit has evaluated the question at any
length. Payne v. Peninsula Sch. Dist., 653 F.3d 863, 867–71 (9th Cir. 2011) (en
banc). In concluding that IDEA exhaustion is not jurisdictional, the Ninth Circuit
found it primarily noteworthy that the statutory language relating to exhaustion
does not cast itself in jurisdictional terms. Id. at 896–70. The court further noted
that, as a matter of policy, deeming IDEA exhaustion jurisdictional was unwise
because it “is not a check-the-box kind of exercise” and its “inexact” nature could
“haunt the entire proceeding, including any appeals” if treated as jurisdictional.
Id. at 870. There is much to be said for these conclusions.
Ultimately, however, for purposes of this case IDEA exhaustion’s status as
a jurisdictional prerequisite is not at issue. Cf. McQueen v. Colo. Springs Sch.
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Dist. No. 11, 488 F.3d 868, 873 (10th Cir. 2007) (raising the possibility that
previous authority incorrectly labeled IDEA exhaustion as jurisdictional, but
leaving the issue for another day). Had defendants failed to raise IDEA
exhaustion below or failed to renew that question here, then our obligation to do
so independently would turn on its jurisdictional or nonjurisdictional nature. But
defendants did raise IDEA exhaustion below and do raise it again here.
We therefore need only decide the merits of the exhaustion question, to
which we now turn.
3. IDEA Exhaustion in This Case
We review de novo the district court’s conclusion that the Muskrats
adequately exhausted their IDEA administrative remedies. Dossa v. Wynne, 529
F.3d 911, 913 (10th Cir. 2008). For clarity, we separate the alleged physical
abuse from the timeouts.
a. Physical Abuse
The Muskrats allege three instances of physical abuse: Renaker’s pop or
slap to the cheek, Rogers’s slap on J.M.’s arm that left a red mark, and the
incident in which Rogers and Renaker restrained J.M. by the shoulders to prevent
him from leaving his desk. Each of these incidents potentially amounts to a
common law tort.
No authority holds that Congress meant to funnel isolated incidents of
common law torts into the IDEA exhaustion regime. We need not decide here
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how to handle repeated instances of physical contact as part of an arguably
necessary disciplinary program. Here, the Muskrats have alleged three scattered
instances of potential battery. All three instances appear to have resulted from
simple frustration with J.M. rather than any legitimate disciplinary goal.
Requiring parents to raise such claims through an IDEA administrative hearing
makes little sense. “[T]he policy supporting the [IDEA] exhaustion requirement
. . . counsels that parents turn first to educational professionals, as opposed to
courts, to remedy disputes over a child’s education.” Cudjoe, 297 F.3d at 1065
(emphasis added). Even though random violence may occur in the course of a
child’s education, we do not believe the child’s parent must request a “no random
violence” clause in the IEP. See, e.g., Padilla v. Sch. Dist. No. 1, 233 F.3d 1268,
1274 (10th Cir. 2000) (finding IDEA exhaustion not required where the complaint
alleges “severe physical, and completely non-educational, injuries”); Franklin v.
Frid, 7 F. Supp. 2d 920, 925 (W.D. Mich. 1998) (excluding “random acts of
violence” from IDEA exhaustion requirement).
Accordingly, the IDEA imposed no obligation on the Muskrats to exhaust
their physical abuse claims.
b. Timeouts
In contrast to the alleged physical abuse, complaints about use of timeouts
as part of a student’s IEP would generally fall within the IDEA exhaustion
regime. As we held in Hayes, 877 F.2d at 813–14, a timeout-related claim must
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be exhausted through the IDEA’s statutory procedures. But here, although the
timeouts have stopped and the Muskrats now seek only damages for the alleged
continuing medical consequences, that circumstance does not necessarily excuse
them from exhaustion.
“[D]amages . . . are ordinarily unavailable in administrative hearings held
pursuant to the [IDEA],” but a plaintiff cannot avoid exhaustion simply because
he or she asks for damages. Cudjoe, 297 F.3d at 1066. The question is whether
the IDEA administrative process can redress the alleged problems in any degree,
regardless of whether it is the redress the plaintiff seeks. Id. A plaintiff may not
wait to bring IDEA-redressable claims until, for example, the child graduates or
leaves the school district—thus leaving nothing but damages to adjudicate. Id. at
1067–68.
In this case, however, none of these principles prevents the Muskrats from
bringing this suit. Although the Muskrats did not formally request a due process
hearing under the IDEA, they nonetheless worked through administrative
channels to obtain the relief they sought, namely, preventing J.M. from being put
in a timeout room in the future. They made written and oral demands to school
administrators not to place J.M. in timeout. See, e.g., App. 673 (affidavit of Mrs.
Muskrat stating that she orally requested in January 2005 that the school no
longer place J.M. in timeout); App. 677–78 (Nov. 17, 2005 letter from Mrs.
Muskrat to school officials listing various items for an upcoming IEP review,
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including that “we do not want [J.M.] being put in time out”). The interested
parties—J.M.’s parents and the school staff responsible for administering his
IEP—then conferred, and the IEP was modified as a result. See, e.g., App. 720
(affidavit of J.M.’s in-school physical therapist stating that school staff met with
Mrs. Muskrat in late November 2005 and agreed not to subject J.M. to the timeout
room); App. 699 (Aug. 10, 2006 IEP review form stating that J.M. will no longer
be placed in timeout).
At this point, given the steps the Muskrats took and the relief they
obtained, it would have been futile to then force them to request a formal due
process hearing—which in any event cannot award damages—simply to preserve
their damages claim. See Hayes, 877 F.2d at 814 (stating in the context of the
IDEA’s predecessor statute that “exhaustion of administrative remedies is not
required if adequate relief is not reasonably available or pursuit of such relief
would be futile”). 4
4
But as we said in Cudjoe,
[W]e reject the argument that exhaustion will be excused
because relief is no longer “available” at the time the
plaintiff seeks to file a civil suit if relief was available at
the time the alleged injuries occurred. To hold
otherwise would transform the IDEA’s exhaustion
requirement into a “hollow gesture.” Frazier[ v.
Fairhaven Sch. Comm., 276 F.3d 52, 63 (1st Cir. 2002)].
Plaintiffs
(continued...)
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Accordingly, the Muskrats’ lawsuit does not fail for lack of exhaustion.
We therefore turn to the merits of their claims.
B. Fourteenth Amendment “Shocks the Conscience” Claim
The due process clause of the Fourteenth Amendment prohibits “executive
abuse of power . . . which shocks the conscience.” Cnty. of Sacramento v. Lewis,
523 U.S. 833, 846 (1998). In Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987), we
held that a form of the shocks-the-conscience test applies to school-inflicted
corporal punishment:
4
(...continued)
should not be permitted to “sit on” live claims and
spurn the administrative process that could provide
the educational services they seek, then later sue for
damages. Were we to condone such conduct, we
would frustrate the IDEA’s carefully crafted process
for the prompt resolution of grievances through
interaction between parents of [children with
disabilities] and the agencies responsible for
educating those children.
Polera, 288 F.3d at 490. See also [Terry Jean
Seligmann, A Diller A Dollar: Section 1983 Claims in
Special Education Lawsuits, 36 Ga. L. Rev. 465, 525–26
(2002)] (noting that measuring available relief at the
time when the injury occurred ensures that “the IDEA
process is not . . . ignored, with the potential
consequence of more educational harm being done to the
child until no remedy but damages remain”).
Cudjoe, 297 F.3d at 1067.
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[T]he substantive due process inquiry in school corporal
punishment cases must be whether the force applied
caused injury so severe, was so disproportionate to the
need presented, and was so inspired by malice or sadism
rather than a merely careless or unwise excess of zeal
that it amounted to a brutal and inhumane abuse of
official power literally shocking to the conscience.
Id. at 655 (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)). We now
apply this standard to all school discipline cases, not just those based on corporal
punishment. See, e.g., Harris v. Robinson, 273 F.3d 927 (10th Cir. 2001)
(applying Garcia to a teacher who made a student unclog a toilet with his hands);
Abeyta v. Chama Valley Indep. Sch. Dist. No. 19, 77 F.3d 1253 (10th Cir. 1996)
(extending Garcia to verbal harassment inducing psychological harm, if
sufficiently severe).
In this case, the district court decided at summary judgment that no
defendant engaged in conscience-shocking behavior. We review that decision de
novo. Borchardt Rifle Corp. v. Cook, 684 F.3d 1037, 1041–42 (10th Cir. 2012).
1. Physical Abuse
We first examine the alleged physical abuse, beginning with Renaker’s pop
to J.M.’s cheek. Even if unprovoked, this act does not shock the conscience. In
particular, there is no evidence that it was a “brutal and inhumane abuse of
official power.” Garcia, 817 F.2d at 655. The evidence most favorable to the
Muskrats instead shows that it was a rather mild slap. We may rightly condemn
it, but it does not rise to the level of a constitutional tort.
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For the same reasons, Rogers’s slap on J.M.’s arm also does not rise to the
level of a constitutional tort. Without any lasting harm or evidence of malice, this
conduct does not shock the conscience.
Finally, the incident in which Rogers and Renaker restrained J.M. at his
desk for a few minutes likewise does not shock the conscience. Viewing the
record in a light most favorable to the plaintiffs, this incident showed, at most,
“a merely careless or unwise excess of zeal” rather than a “brutal and inhumane
abuse of official power.” Id.
In short, the district court correctly concluded that J.M. suffered no
conscience-shocking physical abuse.
2. Timeouts
a. Individual Liability
Among the three individual defendants, the district court found that only
Principal Straughn had ever personally placed J.M. in the timeout room, and that
Straughn did so only once. The Muskrats do not challenge either of these
findings.
The single incident in which Straughn personally placed J.M. in the timeout
room happened during the 2005–06 school year. Straughn was called to J.M.’s
classroom to help calm him down after he had overturned chairs and knocked
items from tables. According to the Muskrats, whose version of events the
district court accepted as true for purposes of summary judgment,
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Straughn grabbed J.M.’s arms and forced him into the
timeout room against his will. He yelled, screamed,
cried, and held onto the door jamb to resist being forced
into the timeout room. Straughn closed the door and
placed a chair in front of the door with J.M. yelling to
let him out. Straughn told the staff to continue to teach
the class over the yelling and screaming.
App. 442–43. This timeout lasted approximately four minutes.
Accepting the Muskrats’ view of events, as the district court did, we agree
with the district court that this does not describe a conscience-shocking event.
While we understand emotions can run high in maintaining classroom order, at
the time of this incident the Muskrats had not yet made Straughn aware of the
medical consequences that they now attribute to J.M.’s timeouts. Thus, although
J.M. obviously did not want to be placed in the timeout room, this single incident
lasting four minutes does not shock the conscience. The various details, such as
placing a chair in front of the door, show at most a “careless or unwise excess of
zeal” rather than a “brutal and inhumane abuse of official power.” Garcia, 817
F.2d at 655.
Thus, the district court did not err in granting summary judgment to
Straughn in her individual capacity.
b. Supervisory Liability
At one point in their opening brief, the Muskrats assert, “Despite knowing
of the agreement not to place J.M. in the timeout room because it was hurting
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him, Straughn encouraged it.” Aplt. Br. at 45. 5 It is not clear whether the
Muskrats intended this stray comment to raise an argument that Straughn can be
held liable in a supervisory capacity for the timeouts in which she did not
personally participate, or whether it is simply another alleged fact in support of
the Muskrats’ belief that J.M.’s overall treatment was conscience-shocking.
If the Muskrats meant to refer to liability under a supervisory theory, it is
insufficient to preserve that argument. A plaintiff can hold a supervisor liable
under § 1983 only if: “(1) the [supervisor] promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required
to establish the alleged constitutional deprivation.” Dodds, 614 F.3d at
1199–1200. Although the Muskrats recognized this in their summary judgment
briefing below, their briefs on appeal nowhere cite this standard, much less apply
it to Straughn.
Accordingly, the Muskrats have forfeited any argument that Straughn may
be liable in a supervisory capacity. See, e.g., Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening
brief are waived . . . .”).
5
“Hurting him” here refers to the general emotional trauma the Muskrats
reported to the school, not the medical consequences they now attribute to the
timeouts. Cf. App. 1063–65 (deposition of Mrs. Muskrat in which she admits the
Muskrats never told school officials that timeouts were producing severe stress
symptoms in J.M.).
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c. School District Liability
Lastly, the Muskrats alleged the school district was liable because the
supposedly injurious conduct was pursuant to official policy or custom. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91, 694–95 (1978). The
district court held that the school district could not be liable under Monell
because the Muskrats had failed to show that any school district employee had
committed a constitutional violation. We have reached the same conclusion and
therefore affirm the district court on this issue.
We further note that even if a jury question existed as to an individual
defendant’s liability, the Muskrats nowhere identify the school district policy that
led to J.M.’s purportedly unconstitutional treatment. They do assert that the
district (or Deer Creek Elementary itself) had a policy of using timeouts only
when a child posed a danger to himself or others, and the district court assumed
that J.M. was never a danger to himself or others—meaning that Deer Creek staff
members may have violated the school’s timeout policy. But if they violated the
policy, we obviously cannot conclude that the policy caused J.M.’s alleged
constitutional injury.
Accordingly, whether or not an employee committed a constitutional
violation, the Muskrats’ Monell claim fails for the additional reason that they
have not identified a policy or custom which caused J.M. harm.
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C. Fourth Amendment Claim
1. Standard of Review
Following summary judgment, the Muskrats filed a Rule 59(e) motion,
arguing that the district court also should have analyzed their § 1983 claim under
a Fourth Amendment reasonableness standard. The district court denied this
motion, reasoning that the Muskrats had never before raised the Fourth
Amendment as a possible source of evaluating § 1983 liability and could not do
so for the first time after summary judgment.
“We review a district court’s denial of a Fed. R. Civ. P. 59(e) motion for
reconsideration under an abuse of discretion standard.” Ysais v. Richardson, 603
F.3d 1175, 1180 (10th Cir. 2010). The Muskrats’ motion, however, was in
substance a Rule 60(b) motion for relief from judgment (rather than a Rule 59(e)
motion to alter or amend the judgment)—but that is also reviewed for abuse of
discretion. Manzanares v. City Of Albuquerque, 628 F.3d 1237, 1240 (10th Cir.
2010).
In addition, the district court’s order is in some respects akin to an order
denying a Rule 15(a) motion to amend. We review such denials for abuse of
discretion, Combs v. PriceWaterhouse Coopers LLP, 382 F.3d 1196, 1205 (10th
Cir. 2004), although in light of Rule 15’s command to grant leave to amend
“freely . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2). Nonetheless,
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“granting leave to amend after entry of summary judgment is disfavored.”
Combs, 382 F.3d at 1205.
2. Analysis
In their original complaint, the Muskrats’ alleged under their § 1983 cause
of action that
J.M. has a constitutional right to freedom from bodily
restraint and corporal punishment without due process of
law. The abuse inflicted was so grossly excessive as to
be shocking to the conscience. Also, the force applied
caused injury so severe, and was so disproportionate to
the need presented, and was so inspired by malice or
sadism rather than a merely careless or unwise excess of
zeal, that it amounted to a brutal and inhuman[e] abuse
of official power. Such right to be free from such abuse
is clearly established and Defendants should have
reasonably known of such right. Thus, the plaintiffs’
substantive due process rights were violated as well
[i.e., in addition to their common law rights]. (See
Gerks v. Deathe, 832 F. Supp. 1450 (W.D. Okla. 1993)
[(applying a Fourteenth Amendment shocks-the-
conscience test in a school discipline case)]; Garcia by
Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987)
[(same).]
Supp. App. 46–47 (bracketed material inserted). The Muskrats did not specify
which constitutional amendment provided the basis for relief, but the language
employed and the cases cited plainly link this cause of action to the Fourteenth
Amendment shocks-the-conscience test.
The school district moved to dismiss this complaint, arguing the IDEA
exhaustion issue discussed previously, and also asserting that the Muskrats failed
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to state a claim with respect to their state-law torts. As noted, the district court
rejected the IDEA exhaustion argument. The court accepted, however, the
argument that the Muskrats’ state-law claims were defective. To ensure it
otherwise had subject matter jurisdiction, the district court also analyzed the
Muskrats’ § 1983 claim and concluded that the Muskrats had adequately pleaded
a Fourteenth Amendment shocks-the-conscience claim.
The district court then gave the Muskrats leave to amend their state-law
claims. The Muskrats timely amended their complaint, reasserting their § 1983
cause of action verbatim, but adding to their state-law claims.
During discovery, the district court required the Muskrats to file a specific
summary of the basis for each cause of action. Concerning their § 1983 claim,
the Muskrats simply reiterated that they sued under § 1983 and that J.M. had been
deprived of a “constitutional or statutory right.” App. 397.
At summary judgment, all defendants challenged the Muskrats’ § 1983
claim, arguing that no conscience-shocking behavior had occurred. The
Muskrats’ response briefs focused entirely on rebutting that argument. But those
briefs also included a passing reference to the Fourth Amendment:
To determine whether there is a substantive due process
violation, the Court should analyze the unreasonableness
of the violation of the child’s liberty interests or seizure
under the 4th and 14th Amendments. Couture v. Board
of Education of Albuquerque Public Schools, 535 F.3d
1243, 1249 (10th Cir. 2008) [(a school discipline case
litigated under both the Fourth Amendment’s
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reasonableness standard and the Fourteenth
Amendment’s shocks-the-conscience standard)];
Ingraham v. Wright, 430 U.S. 651, 674 (1977) [(holding
that school-administered corporal punishment implicates
Fourteenth Amendment due process rights)].
App. 160; 217; 306 (bracketed material inserted; parallel citations omitted).
Apart from this single reference to the Fourth Amendment, the Muskrats’ briefs
focused exclusively on the shocks-the-conscience standard. They offered no
analysis under the Fourth Amendment, and it is clear from their briefs that the
reference was in support of a substantive due process claim. Accordingly, the
district court found this single reference to the Fourth Amendment insufficient to
preserve that theory, and therefore denied the Muskrats’ Rule 59(e) motion.
The Muskrats insist on appeal that they never argued the Fourth
Amendment reasonableness standard at summary judgment (or at any other time)
because the defendants never raised it. In the abstract, the Muskrats are correct
that in most cases a party need only respond to the arguments asserted. In this
context, however, their explanation is not persuasive.
First, they assume that all parties were already on notice of a potential
Fourth Amendment claim. The Muskrats’ only argument in this respect is that
their complaint accused the defendants of various things (e.g., gross negligence
and willful disregard of constitutional rights) that “denote unreasonable conduct.”
Aplt. Br. at 36. In other words, because the complaint alleged conduct that one
might describe as “unreasonable,” the Muskrats argue that all parties should have
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known that they based their claims on a “reasonableness” standard—and the only
reasonableness standard that might apply derives from the Fourth Amendment.
Thus, they say, all parties should have been on notice that the Muskrats based
their claims in the Fourth Amendment. We reject this argument as inconsistent
with the pleadings, and the parties’ and the court’s understanding of the claim.
Second, if the Muskrats had all along been intending to prove their case
under a supposedly more lenient Fourth Amendment standard, we cannot
understand why they did not at least mention that standard at summary judgment.
At a minimum, one would expect a statement such as, “Notably, Defendants do
not argue that their conduct satisfies the Fourth Amendment reasonableness
standard.” But the Muskrats said nothing of the sort.
Given all this, the district court correctly concluded that the Muskrats had
never raised a Fourth Amendment argument before their post-summary judgment
Rule 59(e) motion. New liability theories after summary judgment are
discouraged. Combs, 382 F.3d at 1205. The district court therefore did not abuse
its discretion in denying the Muskrats’ Rule 59(e) motion.
The Muskrats nonetheless suggest that the district court should have
addressed their claims under a Fourth Amendment standard without any
prompting. But the district court had no such duty. The parties and we have
located only one Tenth Circuit case applying a Fourth Amendment standard to
school discipline. See Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535
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F.3d 1243 (10th Cir. 2008). Similar to the Muskrats’ case, Couture involved a
special education student whom school staff repeatedly confined in a timeout
room on account of his violent outbursts and other highly disruptive behavior.
His parents sued under both the Fourth and Fourteenth Amendments. The district
court granted summary judgment in the school district’s favor on the Fourteenth
Amendment claim, reasoning that the Fourth Amendment was the true source of
constitutional protection. The district court denied summary judgment on
qualified immunity under the Fourth Amendment. Id. at 1249.
The school officials appealed the denial of qualified immunity and we
reversed. We held that if timeouts are seizures under the Fourth Amendment
(which we assumed without deciding), the timeouts at issue were reasonable
because “[t]he educators were confronted with an almost impossible behavioral
problem,” id. at 1251, and they behaved reasonably under the circumstances, id.
at 1251–57.
We did not address the Fourteenth Amendment issue because the plaintiffs
did not appeal it. Id. at 1250. We gave no indication whether the district court
correctly determined that the Fourth Amendment, rather than the Fourteenth,
provided the appropriate constitutional protection. We did not cite any of our
previous school discipline cases applying a shocks-the-conscience standard.
-29-
Although a few circuits apply a Fourth Amendment standard to at least
some types of school discipline, 6 the shocks-the-conscience test has predominated
in this circuit and the Fourth Amendment test has come up only in Couture—and
only there because the plaintiffs specifically raised it. Accordingly, in this
circuit, it is not settled law that the Fourth Amendment applies in school
discipline cases; and it is not settled law that the district court had an obligation
to evaluate the Muskrats’ case under the Fourth Amendment reasonableness
standard regardless of how they pleaded their claims.
Finally, we decline the Muskrats’ invitation to consider whether we should
abrogate our shocks-the-conscience standard in favor of a reasonableness standard
in school discipline cases. Our previous panel decisions establish that
shocks-the-conscience applies, see Harris, 273 F.3d at 930; Abeyta, 77 F.3d at
1256-57; Garcia, 817 F.2d at 655, even if Couture suggests that a Fourth
Amendment standard might also apply. This panel cannot overrule prior panel
decisions. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993). We therefore will not
evaluate the question here.
6
See Doe v. Hawaii Dept. of Educ., 334 F.3d 906, 908–09 (9th Cir. 2003)
(holding that “excessive force” by a school official should be analyzed under the
Fourth Amendment); Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168,
171–72 (3d Cir. 2001) (distinguishing claims based on detention, to be analyzed
under the Fourth Amendment, and claims based on use of physical force, to be
analyzed under the Fourteenth Amendment); Wallace v. Batavia Sch. Dist. 101,
68 F.3d 1010, 1014–15 (7th Cir. 1995) (applying Fourth Amendment standard to a
situation in which a teacher “seized” a student by attempting to drag her out of a
classroom by the elbow).
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In sum, the district court did not err in failing to apply the Fourth
Amendment to the Muskrats’ § 1983 claims.
III. Conclusion
For the reasons stated above, we AFFIRM the district court’s grant of
summary judgment as to all defendants.
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