Kouider v. Parma City School District

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

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:

SOURYANA KOUIDER, : CASE NO. 1:19-cv-02294

on behalf of her minor child, Y.C. :

:

Plaintiff, :

:

v. : OPINION & ORDER

: [Resolving Docs. 36, 45]

PARMA CITY SCHOOL DISTRICT :

BOARD OF EDUCATION, , :

:

Defendants. :

:

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JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

Plaintiff Souryana Kouider sues Parma School District Board of Education and a

school-resource officer, Antonio Baez, on behalf of her minor child, Y.C. Plaintiff brings

federal constitutional and state-law claims arising out of an incident in which Y.C. had an

emotional outburst during recess. During the outburst, Plaintiff alleges that Defendant

Baez physically restrained Y.C. and then escorted Y.C. to the principal’s office. In the

principal’s office, Plaintiff alleges that Defendant Baez intentionally sprayed Y.C. in the

face with a juice box.

Defendants Baez and the School District separately move for summary judgment on

all claims.1 Plaintiff opposes,2 and Defendants reply.3

For the following reasons, the Court GRANTS IN PART and DENIES IN PART

Defendants’ motions for summary judgment.

1 Doc. 36 (Parma); Doc. 45 (Baez).

2 Doc. 48; Doc. 49.

Background

At the relevant time, Plaintiff Y.C. was an 8-year-old, third-grade student at John

Muir Elementary School in the Parma City School District (“School District”).4 Y.C. has

anxiety and Attention-Deficit Hyperactivity Disorder, and he has had behavioral problems

at school since the first grade.5 Y.C. is Arab-American.6

I. Playground Incident

On September 18, 2019, during recess, Y.C. played atop the school’s jungle gym

and refused to let girl students use the jungle-gym slides.7 Y.C. called other students names

and ultimately “got[] a little bit physical and started to push and kind of kick people.”8

Meanwhile, the School District’s lead school-resource officer, Defendant Antonio

Baez, was at John Muir to train a new school-resource officer, Nonparty Nick Santora.9

Officers Baez and Santora were leaving the school when they heard a child screaming at

the jungle gym.10 They turned back to assist.11 Defendant Baez climbed the jungle gym

and confronted Y.C.12 Baez convinced Y.C. to sit down, and Baez and Y.C. went down the

slide together.13

4 Doc. 38 at 8, 34; Doc. 43 at 8.

5 Doc. 38 at 16-23, 27, 33; Doc. 39 at 16; Doc. 40 at 11-12.

6 Doc. 39 at 11.

7 Doc. 41 at 40.

8 Doc. 42 at 15.

9 Doc. 41 at 31-32; Doc. 44 at 13.

10 Doc. 41 at 39.

11

12 Doc. 41 at 41; Doc. 42 at 16.

13 Doc. 41 at 41-42; Doc. 42 at 16.

Y.C. ran off to a parking lot area.14 Santora apprehended Y.C., and then Santora and

Defendant Baez escorted Y.C. to a bench.15 The officers restrained Y.C. on the bench

while Y.C. was “screaming, yelling, spitting, [and] doing all sorts of things.”16

At one point, Baez held Y.C.’s shirt over Y.C.’s face.17 Baez later said that this was

to prevent Y.C.’s spitting.18 The school’s “behavior analyst,” Hollee Anderson, later opined

that Baez’s shirt-over-the-face technique was inappropriate and filed an abuse report

against Baez.19

II. Principal’s Office Juice-Squirting

Santora and Defendant Baez escorted Y.C. to Principal Karl Schneider’s office.20

Once in the principal’s office, Officers Baez and Santora sat Y.C. in a chair between

them.21 Y.C. continued his temper tantrum—flailing at the officers, screaming that he

wanted his “red Doritos,” and trying to escape the office.22 At one point, Y.C. dove under

a table and unplugged cords from the wall.23 According to Y.C., the officers pulled Y.C.

out from under the table by his feet and ankles.24 Principal Schneider left the office to look

for the red Doritos.25 He returned with Y.C.’s lunch bag, but the red Doritos were not in it,

so Schneider left again to continue the search.26

14 Doc. 42 at 16; Doc. 44 at 43.

15 Doc. 42 at 17; Doc. 44 at 43.

16 Doc. 42 at 17.

17

18 Doc. 41 at 44.

19 Doc. 42 at 5-7, 17-18; Doc. 43 at 22-23, 48-49.

20 Doc. 41 at 44.

21 at 50.

22 Doc. 40 at 16-19; Doc. 41 at 50; Doc. 44 at 44.

23 Doc. 40 at 18; Doc. 41 at 48.

24 Doc. 40 at 18.

25 Doc. 41 at 50; Doc. 44 at 44.

26 Doc. 41 at 51-52.

While Principal Schneider looked for the Doritos, Defendant Baez offered Y.C. the

contents of his lunch bag, including a Capri Sun juice pouch (“juice box”).27 The Parties

dispute what happened next.

In Y.C.’s version, Officer Baez inserted the straw into the juice box and took a sip.28

Baez handed the juice box to Y.C. but Y.C. did not want it, so Y.C. put the juice box down

on the floor.29 According to Y.C., Defendant Baez then picked up the juice box and

sprayed it on Y.C.30

In Defendant Baez’s version, Baez offered Y.C. the juice box, but Y.C. did not want

it, so Baez placed the juice box on a nearby table.31 When Baez looked away, Y.C.

grabbed the juice box and intentionally sprayed Baez and Santora.32 Baez then grabbed

the juice box, and, when Y.C. tried to hang on, Y.C. “sprayed himself . . . underneath his

chin.”33

Nonparty Santora originally corroborated Baez’s version in incident reports.34

However, Santora later recanted. In his deposition, Santora testified that, in creating the

incident reports, Baez had pressured Santora to present the facts in a light favorable to

Baez.35 But Santora testified that the juice-squirting incident actually transpired as follows:

From what I saw, Tony [Baez] put the straw in. It looked like he may have

taken a sip, I’m not sure. He gave the juice box to the kid. The kid grabbed

it with two hands, started spraying it all over Tony, the desk, slightly me.

27 Doc. 41 at 52, 57-58.

28 Doc. 40 at 20.

29 at 23-24.

30 at 20.

31 Doc. 41 at 58.

32

33 Doc. 41 at 62.

34 Doc. 44 at 42, 80, 82.

35 at 46-47.

Tony grabbed it, ripped it out of the kid’s hands, and sprayed it up and down

on the kid’s face.36

The Parties also dispute whether Defendant Baez called Y.C. a “DACA” in the

principal’s office. DACA is an acronym for Deferred Action for Child Arrivals—a federal

immigration policy. In depositions, Y.C.’s sister testified that Baez pejoratively called Y.C.

a DACA during the incident.37 However, Y.C. himself testified that he was not called a

DACA,38 and both Baez and Santora deny calling Y.C. a DACA.39

After the juice-squirting incident, Principal Schneider returned and gave Y.C. his

Doritos and some cold water.40 A school official contacted Y.C.’s father, who took Y.C.

home.41 The school suspended Y.C. for 10 days.42

III. Lawsuit Against the School District and Officer Baez

On October 1, 2019, Plaintiff Souryana Kouider sued on Y.C.’s behalf against

Defendants Baez and the School District for the September 18, 2019 incidents.43 Plaintiff

sues Baez in his official and individual capacities, claiming that Baez violated Y.C.’s Fourth

and Fourteenth Amendment rights (Counts I – II). Plaintiff sues the School Board for

inadequately training Defendant Baez and Officer Santora (Count III). Finally, Plaintiff

brings supplemental state-law claims against both Defendants for intentional infliction of

emotional distress, assault, and battery (Counts IV – V).

36 at 17.

37 Doc. 38 at 54.

38 Doc. 40 at 28.

39 Doc. 41 at 15; Doc. 44 at 11.

40 Doc. 41 at 49; Doc. 43 at 44.

41 Doc. 43 at 44.

42

43 Doc. 1. Plaintiff later amended her complaint. Doc. 25.

On June 22, 2020, Defendants Baez and the School District separately moved for

summary judgment on all claims.44 Plaintiff opposes,45 and Defendants reply.46

Summary Judgment Standard

Summary judgment is appropriate where the movant shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of

law.47 In response to a summary judgment motion properly supported by evidence, the

nonmoving party is required to present some “significant probative evidence which makes

it necessary to resolve parties’ differing versions of the dispute at trial.”48 The Court

construes all evidence in the light most favorable to the nonmoving party.49

Discussion

I. Abandoned Claims

Plaintiff did not address Defendants’ motions for summary judgment on the

following claims: equal protection claims on the basis of disability against both Defendants

(Count I); intentional infliction of emotional distress against the School District (Count IV);

and assault and battery against the School District (Count V).

Plaintiff has therefore abandoned these claims.50 The Court GRANTS Defendants’

motion for summary judgment as to these claims.

44 Doc. 36 (Parma); Doc. 45 (Baez).

45 Doc. 48; Doc. 49.

46 Doc. 52 (Parma); Doc. 53 (Baez).

47 Fed. R. Civ. P. 56(a).

48 , 873 F.2d 929, 931 (6th Cir. 1989).

49 , 475 U.S. 574, 601 (1986).

50 , 68 F. Supp. 2d 853, 862 (N.D. Ohio

1999) (dismissing claims as abandoned where plaintiff failed to address, much less support, claims in

response to summary judgment motion).

II. Constitutional Claims (Counts I – III)

Defendants move for summary judgment on all federal constitutional claims (Counts

I – III). The Court considers Defendant Baez’s motion first, followed by Defendant School

District’s motion.

42 U.S.C. § 1983 Claims Against Officer Baez (Counts I – II)

As a preliminary matter, the Court notes that Plaintiff has sued Officer Baez

individually and in his official capacities as an employee of the School District.

1. Official Capacity Claims

Suing a government employee in his official capacity ”generally represent[s] only

another way of pleading an action against an entity of which an officer is an

agent.”51 “[W]hen a § 1983 complaint asserts a claim against a government entity and a

government official in his official capacity, federal courts will dismiss the official-

capacity claim.”52

Here, Plaintiff has sued Defendant School District directly with a failure-to-

train claim. Therefore, Plaintiff’s claims against Defendant Baez in his official capacity are

redundant and are hereby DISMISSED.

2. Individual Capacity Claims - Merits

With respect to Plaintiff’s § 1983 claims asserted against Defendant Baez in his

individual capacity, Defendants argue that Plaintiff’s claims fail on the merits.53 Defendant

51 , 473 U.S. 159, 165 (1985) (quoting

, 436 U.S. 658, 690 n. 55 (1978)).

52 , 139 F. Supp. 3d 869, 890 (S.D. Ohio 2015) (citing

, 103 F.3d 495, 509 (6th Cir. 1996));

, No. 1:12-CV-417, 2015 WL 1022084, at *2 (W.D. Mich. Mar. 9, 2015) (collecting cases).

53 Doc. 36-1 at 9; Doc. 45 at 18-22.

Baez also argues that he is entitled to qualified immunity on these claims.54 The Court first

considers the merits arguments.

Plaintiff brings her constitutional claims under 42 U.S.C. § 1983. To recover

under § 1983, a plaintiff must prove that a defendant, while acting under color of state law,

violated rights secured by the Constitution or laws of the United States.55

In this case, there is no question that Defendant Baez was acting under color of state

law at the time of the events in question. The relevant question therefore is whether

Defendant Baez violated Y.C.’s rights secured by the Constitution or laws of the United

States. At the summary-judgment stage, the Court considers whether Plaintiff has at least

created a dispute of fact as to each claim’s required elements.

a. Equal Protection Claim (Count I)

Plaintiff brings an equal protection claim against Defendant Baez. Plaintiff alleges

Defendant Baez “targeted” Y.C. because Y.C. is an Arab-American.56 Plaintiff says that the

Court can infer Baez’s discriminatory intent because Baez pejoratively called Y.C. a

DACA.57

In Defendants’ motions for summary judgment, Defendants argue that Plaintiff’s

equal protection claim fails because Plaintiff has adduced no admissible evidence that

anyone called Y.C. a DACA.58

54 Doc. 45 at 16.

55 398 U.S. 144, 150 (1970).

56 Doc. 25 at 7.

57 Doc. 49 at 16. “‘DACA’ is an acronym for Deferred Action for Child Arrivals but is used

pejoratively by [school resource officers] based on the ethnicity and ancestry of the parents of [Y.C.].” Doc.

25 at 4.

58 Doc. 36-1 at 10-11; Doc. 45 at 20.

The Equal Protection Clause prohibits state conduct that discriminates on the basis

of membership in a suspect class, such as race and national origin.59 To prove an equal

protection claim, a plaintiff must demonstrate “intentional and arbitrary discrimination” by

the state; that is, he must demonstrate that he “has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in

treatment.”60 A court may consider derogatory, racially-inflected comments in determining

whether a state officer acts with discriminatory purpose.61

In this case, Plaintiff’s allegations, properly supported, could state an equal

protection claim. Plaintiff argues that Baez pejoratively called Y.C. a DACA during the

incident in the principal’s office.62 This racially-inflected comment would tend to show

that Baez acted with a discriminatory purpose.

However, Plaintiff does not properly support the equal protection claim. Plaintiff

offers no admissible corroboration that Defendant Baez called him a DACA. During Y.C.’s

deposition, Y.C. stated that he did not remember being called a DACA.63 And both Baez

and Santora deny calling Y.C. a DACA.64

59 , 426 U.S. 229, 239 (1976).

60 , 528 U.S. 562, 564 (2000); , 481

U.S. 279, 292 (1987).

61 410 F.3d 810, 831 (6th Cir. 2005) (“[S]ummary judgment

was particularly inappropriate because of the alleged racial tones to the officer[s’] conduct.”);

, 86 F. App’x 790, 803 (6th Cir. 2003) (“Although the question is close, the evidence of the use of a

possibly racial epithet raises an issue of fact as to whether [a defendant’s] actions . . . were based on race.”);

313 F.3d 828, 834 (3d Cir. 2002) (observing that a factfinder could determine that an

officer’s reference to plaintiffs as “Mexicans” was stated as a pejorative racial slur and demonstrated a racially

discriminatory purpose).

62 Doc. 25 at 4; Doc. 49 at 16.

63 Doc. 40 at 27-28.

64 Doc. 41 at 15; Doc. 44 at 11.

Plaintiff’s only evidence that a school resource officer called Y.C. a DACA comes

from Y.C.’s sister’s deposition.65 Y.C.’s sister stated that Y.C. had told her that a school-

resource officer had called Y.C. a DACA.66

However, because Y.C.’s sister’s statement is inadmissible hearsay, the Court does

not consider it at the summary-judgment stage. Federal Rule of Evidence 801 defines

hearsay as “a statement that (1) the declarant does not make while testifying at the current

trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in

the statement.”67 In the Sixth Circuit, ”it is well established that a court may not consider

hearsay when deciding a summary judgment motion.”68

Y.C.’s sister’s statement is an out-of-court statement introduced to prove the truth of

the matter asserted—that a school-resource officer called Y.C. a DACA. The statement is

therefore hearsay, and Plaintiff fails to explain how the statement would be admissible

under one of the Rule 803 and 804 hearsay rule exceptions.69

Accordingly, Plaintiff finds no admissible evidence to support her equal protection

claim. The Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s equal

protection claim.

65 Y.C.’s mother’s deposition also references the DACA comment, Doc. 39 at 26-27, but Plaintiff’s

summary-judgment opposition does not rely on her testimony. In any event, Y.C.’s mother’s statement suffers

the same hearsay problem as Y.C.’s sister’s testimony.

66 Doc. 38 at 53-54.

67 Fed. R. Evid. 801(c).

68 460 F. App’x 513, 514 (6th Cir.2012). Although some forms of hearsay may be

considered (affidavits, depositions, answers to interrogatories), the evidence must be admissible at

trial. In other words, the evidence need not be in admissible , but its must be

admissible. at 515 (quoting 106 F.3d 135 (6th Cir.1997)).

69 Statements that are properly considered hearsay are inadmissible unless they fall within one of the

exceptions to the hearsay rule found in Rules 803 and 804. Fed. R. Evid. 802, 803–804.

b. Substantive Due Process Claim (Count I)

Plaintiff brings a substantive due process claim against Defendant Baez.70 Plaintiff

alleges that Defendant Baez violated Y.C.’s substantive due process right to bodily integrity

when Baez sprayed Y.C. with juice and tried to cover it up.71

Public school students have the substantive due process right “to be free of state

intrusions into realms of personal privacy and bodily security.”72 In the Sixth Circuit,

courts evaluate such claims under the “shocks the conscience” standard.73 That is, to raise

a material issue of fact as to whether Defendant Baez violated Y.C.’s rights to personal

security and freedom from abuse at the hands of state officials, Plaintiff “must identify

conduct that is ‘so brutal, demeaning, and harmful as literally to shock the conscience.’”74

In assessing what conduct “shocks the conscience,” there is no “calibrated yard

stick.”75 But generally speaking, “[c]onduct shocks the conscience if it ‘violates the

decencies of civilized conduct.’”76 Actions that shock the conscience are generally so

brutal and offensive that they do not comport with traditional ideas of fair-play and

decency.77

The Sixth Circuit has set a high bar for conduct that shocks the conscience.78 For

instance, in , the Sixth Circuit concluded that a teacher’s

70 Doc. 25 at 7.

71 ; Doc. 49 at 18-22.

72 828 F.2d 1151, 1158 (6th Cir. 1987).

73 , 810 F.3d 403, 410 (6th Cir. 2016).

74 (quoting 828 F.2d at 1158).

75 , 523 U.S. 833, 846 (1998).

76 , 763 F.3d 573, 589 (6th Cir. 2014) (quoting , 523 U.S. at 846-47).

77 at 589-90.

78 In , the Sixth Circuit found that a special education teacher’s conduct did not

“shock the conscience” where the teacher was accused of “gagging one student with a bandana to stop him

from spitting, strapping another to a toilet to keep her from falling from the toilet, and forcing yet another to

single slap of student did not violate the student’s substantive due process rights.79 Further,

the Sixth Circuit held that the same teacher’s rubbing of a separate student’s stomach,

accompanied by a sexually suggestive remark, did not violate the student’s substantive due

process rights.80

In the school context, the Sixth Circuit has adopted two distinct frameworks for

assessing whether a student’s constitutional claim “shocks the conscience”: one for

excessive corporal punishment, the other for educational techniques involving force.81

Neither framework quite fits the instant case’s juice-squirting incident. The alleged

juice-squirting was arguably not corporal punishment, and it certainly was not an

educational technique. Nonetheless, the Court briefly considers how each test bears on

the facts of this case.

Under the corporal punishment inquiry, courts assessing whether conduct shocks

the conscience consider “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 the conscience.”82

Applied here, the corporal punishment test tends to suggest that Baez’s alleged

conduct was conscience-shocking. There is a dispute of fact whether Y.C.’s emotional

sit with her pants down on a training toilet in full view of her classmates to assist her with toilet-training.”

810 F.3d at 406, 410-11.

79 , 76 F.3d 716, 726 (6th Cir. 1996).

80

81 , 810 F.3d at 411.

82 828 F.2d at 1158 (quoting 621 F.2d at 613).

injury was severe; there was no need for the juice-squirting; and there is a dispute of fact

whether Baez’s conduct was inspired by malice or sadism.

The second school-setting framework considers whether educational techniques

involving force shock the conscience. The test asks:

a) Was there a pedagogical justification for the use of force?;

b) Was the force utilized excessive to meet the legitimate objective in this

situation?;

c) Was the force applied in a good-faith effort to maintain or restore discipline

or maliciously and sadistically for the very purpose of causing harm?; and

d) Was there a serious injury?83

This second test also suggests that Baez’s alleged conduct was conscience-shocking.

As to the first factor, there is no arguable pedagogical justification for spraying a child with

juice. The second factor is inapplicable. As to the third factor, there is a dispute of fact

whether Officer Baez’s actions were malicious and sadistic. As to the fourth factor, there

was arguably a serious injury or at least a factual dispute regarding one.

Thus, the two above-mentioned tests suggest that Plaintiff has demonstrated a

factual dispute as to whether Defendant Baez’s conduct shocks the conscience. On the

other hand, this remains a close question in light of Sixth Circuit precedent that raises the

bar high for conscience-shocking behavior.

Ultimately, the Court concludes that Plaintiff’s substantive due process claims

survive Defendants' motions for summary judgment. The Court is swayed by the fact that

Y.C.’s disability makes him especially vulnerable and that Baez’s alleged conduct was

unjustifiable. Indeed, “conduct intended to injure in some way

83 , 810 F.3d at 411 (quoting , 272

F.3d 168, 173 (3d Cir. 2001)).

is the sort of official action most likely to rise to the conscience-

shocking level.”84

Accordingly, as to the merits arguments, the Court DENIES Defendants’ motions for

summary judgment on the substantive due process claims. The Court discusses Defendant

Baez’s qualified immunity argument below.

c. Fourth Amendment Claims (Count II)

Plaintiff brings a Fourth Amendment claim against Defendant Baez.85 In her

complaint and opposition brief, Plaintiff is ambiguous as to whether her Fourth

Amendment claim is an excessive force claim or an unlawful seizure claim.86 The Court

considers each potential claim in turn.

i. The Court Dismisses Plaintiff’s Excessive Force Claim as

Duplicative of His Substantive Due Process Claim.

Where claims for excessive force have been asserted by public school students

against public school employees, the Sixth Circuit, consistent with other circuit courts, has

applied the shocks-the-conscience standard to determine whether liability should

exist.87 Where plaintiffs have brought both Fourth Amendment excessive force claims and

84 523 U.S. at 847 (emphasis added).

85 Doc. 25 at 8-9.

86 ; Doc. 49 at 22; 482 F.3d 840, 848-51 (6th Cir.2007) (analyzing

unlawful seizure and excessive force claims separately).

87 589 F.3d 257, 269 (6th Cir.2009) (applying the shocks-the-

conscience standard to § 1983 claims premised on allegations of physical abuse of a student by a

teacher); 76 F.3d 716, 725 (6th Cir.1996) (applying the shocks-the-

conscience standard even though “the record fail[ed] to reflect any legitimate disciplinary purpose

occasioning the slap to” a student); 591 F.3d 624, 634 (8th Cir.2010)

(“This circuit has generally analyzed claims alleging excessive force by public school officials under the

rubric of substantive due process, however, and not the Fourth Amendment.”).

Fourteenth Amendment substantive due process claims, courts have dismissed the Fourth

Amendment claims as duplicative.88

Accordingly, to the extent Plaintiff's Fourth Amendment claim is for excessive force,

it is DISMISSED as a separate claim because it is more appropriately analyzed under the

substantive due process claim in Count One using the “shocks-the-conscience” standard.89

ii. Plaintiff Fails to Give Enough Evidence for an Unlawful Seizure

Claim.

The Court next considers Plaintiff’s remaining Fourth Amendment claim—unlawful

seizure.90 With Plaintiff’s unlawful seizure claim, Plaintiff alleges that Baez acted

unreasonably when he physically restrained Y.C., pulled Y.C.’s shirt over his face, detained

Y.C. in the principal’s office, and sprayed Y.C. with juice.91 Plaintiff says Defendant’s

actions caused Y.C. “severe emotional distress.”92

Defendants argue that Plaintiff’s Fourth Amendment claim fails because Defendant

Baez acted reasonably.93

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”94

The Fourth Amendment applies to the school setting.95

88 , No. 1:14-CV-64, 2015 WL 4624629, at *4

(S.D. Ohio Aug. 3, 2015); , 134 F. Supp. 3d. 1066, 1083 (E.D. Mich. 2015), ,

836 F.3d 672 (6th Cir. 2016).

89 , 2015 WL 4624629, at *4.

90 at *3 (“The Court agrees that the Fourth Amendment excessive force claim is subject to the

“shocks-the-conscience” analysis, but concludes that the Fourth Amendment unlawful seizure claim may be

maintained as a separate claim at this time.”)

91 Doc. 25 at 8-9; Doc. 49 at 22.

92 Doc. 25 at 9.

93 Doc. 36-1 at 15; Doc. 45 at 17.

94 U.S. Const. Amend. IV.

95 469 U.S. 325, 336-37 (1985).

The first question to consider is whether there was a “seizure” under the Fourth

Amendment. A seizure generally occurs when, in view of all the surrounding

circumstances, “a reasonable person would have believed that he was not free to leave.”96

In a school setting, the Fourth Amendment must be viewed differently. As one circuit court

has explained:

We must think about seizures differently in the school context, as students are

generally not at liberty to leave the school building when they wish.

To qualify as a seizure in the school context, the limitation on the student’s

freedom of movement must significantly exceed that inherent in every-day,

compulsory attendance.97

Here, Plaintiff’s allegations are sufficient to satisfy the burden of showing a plausible

seizure exceeding that inherent in compulsory attendance. Plaintiff alleges that Defendant

Baez restrained Y.C. by physically removing him from the playground and detaining him in

the principal’s office.98

The next questions are whether that seizure was justified at its inception and

whether the seizure was permissible in scope.99 A seizure is “permissible in its scope

when the measures adopted are reasonably related to the objectives of the [seizure] and

not excessive[ ] . . . in light of the age and sex of the student and the nature of the

infraction.”100

Here, Plaintiff fails to give sufficient evidence that the seizure was not permissible in

its scope. At the playground, Y.C. had acted out on the jungle-gym slide.101 After Baez

96 486 U.S. 567, 573 (1988); 461

F.3d 724, 739 (6th Cir. 2006).

97 , 535 F.3d 1243, 1250-51 (10th Cir. 2008).

98 Doc. 42 at 17; Doc. 44 at 43. Doc. 41 at 44.

99 883 F.2d 882, 884 (10th Cir. 1989); 535 F.3d at 1250.

100 469 U.S. at 342.

101 Doc. 41 at 40.

convinced Y.C. to come off the jungle gym, Y.C. ran to a parking lot area.102 After taking

Y.C. to a bench, Y.C. began screaming and spitting.103 Against this backdrop, Baez could

reasonably require Y.C to go to the principal’s office.

In sum, the evidence fails to create a dispute of fact whether the seizure was

reasonable in scope. Accordingly, as to the merits argument, the Court GRANTS

Defendants’ motion for summary judgment on Plaintiff’s Fourth Amendment unlawful

seizure claim.

3. Individual Capacity Claims – Qualified Immunity

Having found that Plaintiff’s substantive due process claim survives Defendants’

motion for summary judgment on the merits, the Court turns to Defendant Baez’s qualified

immunity argument.

Under the doctrine of qualified immunity, government officials are not liable for

civil damages “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”104

The Supreme Court has described a two-part analysis for resolving government

officials’ qualified immunity claims. First, a court must ask whether, taken in the light

most favorable to the plaintiff, the defendant’s conduct violated a constitutional

right.105 Second, the court must determine whether the constitutional right was “clearly

established” at the time of the defendant’s conduct.106 A court may begin its analysis with

102 Doc. 42 at 16; Doc. 44 at 43.

103 Doc. 42 at 17.

104 , 555 U.S. 223, 231 (2009) (quoting 457 U.S. 800, 818

(1982) (internal quotations omitted)).

105 , 555 U.S. 223, 232 (2009).

106

either prong, but both questions must be answered in the affirmative for liability to

attach.107

As explained in the merits analysis above, Plaintiff has sufficiently alleged that

Officer Baez’s conduct violated Y.C.’s substantive due process right to bodily integrity.

Thus, the Court must determine whether this constitutional right was “clearly established”

at the time of Baez’s conduct.108

With respect to the substantive due process claim, the right to be free from physical

abuse at the hands of state actors in the school setting, particularly where it is not

administered for any pedagogical purpose, is clearly established.109 More specifically, in

1987, the Sixth Circuit has held that:

[T]he right to be free of state intrusions into realms of personal privacy and

bodily security through means so brutal, demeaning, and harmful as literally

to shock the conscience . . . [is c]learly recognized in persons charged with or

suspected of crime and in the custody of police officers[. W]e simply do not

see how we can fail also to recognize it in public school children under the

disciplinary control of public school teachers.110

And as recognized by the Supreme Court in 1998, conduct “intended to injure”

without any justifiable government interest most clearly will rise to the conscience-

shocking level.111

107 at 236.

108 at 232.

109 828 F.2d 1151, 1158 (6th Cir.1987); Ohio Rev. Code

§ 333319.41.

110 , 828 F.2d 1151, 1158 (6th Cir. 1987) (quoting , 621 F.2d

607, 613 (4th Cir. 1980)).

111 523 U.S. at 848-49; 763 F.3d at 590 (relying on ).

Moreover, the law is clearly established that any conduct of a government officer

must be rationally related to a legitimate state interest and that deliberate indifference to an

individual’s federally protected rights may be conscience-shocking.112

As such, a reasonable school employee knew or should have known that actions

taken with the intent to injure a special education student and without any pedagogical

purpose were constitutionally impermissible, even if the specific actions in question—such

as juice-squirting—had not previously been held unlawful.113

As the Supreme Court has recognized, “officials can still be on notice that their

conduct violates established law” even in novel factual circumstances—such as the instant

juice-squirting incident.114

Accordingly, the Court rejects Defendant Baez’s qualified immunity argument and

DENIES Defendants’ motion for summary judgment on Plaintiff’s substantive due process

right to bodily integrity.

42 U.S.C. § 1983 Claims Against Parma City School District (Count III)

The Court now turns to the remaining § 1983 claim. Plaintiff brings a

liability claim against Defendant School District under a failure-to-train theory.115

Specifically, Plaintiff alleges that the School District failed to adequately train Baez or

112 107 F.3d 1220, 1228 (6th Cir. 1997);

255 F.3d 301, 306 (6th Cir.2001)

113 , 520 U.S. 259, 271 (1997).

114 557 U.S. 364, 377-78 (2009) (quoting

536 U.S. 730, 741 (2002)). This is because, as Judge Posner has observed, “[t]he easiest cases don’t

even arise. , 914 F.2d 846, 851 (7th Cir. 1990). For example, “[t]here has

never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not

follow that if such a case arose, the officials would be immune from damages liability because no previous

case had found liability in those circumstances.” Applied here, just because juice-squirting has not been

previously found unconstitutional, it does not follow that an official who maliciously squirts juice on children

is immune from liability.

115 Doc. 25 at 9-11; Doc. 49 at 22-24.

Santora “to ensure that citizens are not subjected to inappropriate and abusive police

misconduct based on disability, ethnicity or for any other reason.”116 As a result of

Defendant’s claimed failure to train, Plaintiff alleges that Y.C. “has suffered and will

continue to suffer substantial emotional distress, physical pain and suffering.”117

To defeat summary judgment on a failure-to-train claim, Plaintiff must show or

create genuine dispute of material fact that “(1) the training or supervision was inadequate

for the tasks performed; (2) the inadequacy was the result of the [entity’s] deliberate

indifference; and (3) the inadequacy was closely related to or actually caused the injury.”118

Plaintiff adduces enough evidence to create a genuine issue of material fact on her

failure-to-train claim.

1. Training Adequacy

As to the first prong, Plaintiff has raised a genuine issue of material fact as to

whether the training or supervision was inadequate for the tasks performed. Plaintiff

presents evidence that (1) two Parma City School employees asked for more resource-

officer training on working with children;119 and (2) that Baez said that he thought he was

not supposed to be monitoring Y.C. and that the administration should have been more

involved.120

116 Doc. 25 at 10.

117 at 11.

118 , 893 F.3d 877, 902 (6th Cir. 2018) (quoting

, 455 F.3d 690, 700 (6th Cir. 2006)).

119 Doc. 42 at 19-23 (Anderson requested more training for SROs working with children); Doc. 44 at

12 (Santora requested training for working with children).

120 Doc. 41 at 60.

In opposition, the School District argues and presents evidence that Baez had a day

of crisis intervention training.121

The School District’s argument is unpersuasive. The question is whether Baez’s

training was —not whether he had any training. There is a dispute of fact as to

whether Baez’s training was adequate.

2. Deliberate Indifference

As to the second prong, Plaintiff has raised a genuine issue of material fact as to

whether the alleged training inadequacy resulted from the School District’s deliberate

indifference.

The indifference of government officials may be shown where, “in light of the duties

assigned to specific . . . employees[,] the need for more or different training is so obvious,

and the inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have been deliberately indifferent to the

need.”122 Whether a plaintiff has succeeded in demonstrating such deliberate indifference

is generally a question for the jury.123

To show the School District’s deliberate indifference, Plaintiff presents evidence that

two School District employees asked for more resource-officer training. Specifically,

Plaintiff presents evidence that (1) Officer Santora asked for more training on how to work

121 Doc. 36-1 at 17; Doc. 41 at 20.

122 489 U.S. 378, 390 (1989).

123 , 250 F.3d 668, 682 (9th Cir. 2001).

with children124 and (2) Behavioral Analyst Hollee Anderson asked for “physical response”

training for the school-resource officers.125

Defendant School District argues that these requests do not show the deliberate

indifference. Regarding the Santora request, the School District points out that it occurred

the Y.C. incident, so that request should not factor into the deliberate indifference

analysis.126 And regarding the Anderson request, Defendant argues that even though the

request occurred the Y.C. incident, Anderson’s request does not show Parma’s

deliberate indifference because Anderson had felt that the School District was receptive to

her suggestion.127

Defendant Parma City School District is correct as to the Santora request. Santora’s

after-the-fact request does not show that the School District was deliberately indifferent as

to the allegedly inadequate training.

However, the School District’s argument as to the Anderson request misses the

mark. Whether Anderson felt the School District was receptive to her suggestion is

irrelevant. What matters is whether Defendant School District was on notice that its

training for school-resource officers was inadequate. And whether the Defendant School

District responded to the problem.

That Anderson requested more training for the officers before the Y.C. incident,

along with the egregiousness of Baez’s conduct,128 does tend to show that the School

124 Doc. 42 at 19-23 (Anderson requested more training for SROs working with children); Doc. 44 at

12, 32 (Santora requested training for working with children).

125 Doc. 42 at 19-23 (Anderson requested more training for SROs working with children).

126 Doc. 52 at 7.

127 Doc. 52 at 7-8.

128 To state a failure-to-train claim absent a pattern of violations, a plaintiff may assert a “single

incident” theory of liability by alleging that the constitutional deprivation at issue was the “obvious”

District was on notice that its training was deficient. At this stage of the inquiry, the Court

views the facts in light most favorable to the nonmoving party and concludes that

Anderson’s request and the egregiousness of Baez’s conduct create a dispute of fact

whether the School District was deliberately indifferent as to the need for more resource-

officer training.

3. Causality

As to the third and final prong, Plaintiff has raised a genuine issue of material fact as

to whether the alleged training inadequacy was closely related to or actually caused the

injury.

In opposition, Defendant School District argues that a lack of training did not cause

Y.C.’s injury.129 Defendant School District says that it is “patently obvious” that squirting

juice on a child is inappropriate, and “[o]ne does not need specialized trained to know

that.”130

Defendant is right that juice-squirting is obviously inappropriate, but, at the

summary-judgment stage, the Court cannot conclude that adequate training would not

have made a difference.131 There is, at the very least, a dispute of material fact whether

adequate training could have prevented Baez’s alleged conduct and Y.C.’s injury.

In sum, the Court DENIES Defendants’ motion for summary judgment on Plaintiff’s

liability claim.

consequence of the defendant’s failure to provide specific training. , 563 U.S. 51, 61

(2011).

129 Doc. 52 at 9.

130

131 Doc. 44 at 12 (Santora testifying that specific training from Parma about working with children

would have been beneficial).

III. State-Law Claims (Counts IV – V)

Plaintiff brings two supplemental state-law claims against Defendant Baez. With

Count IV, Plaintiff claims Baez intentionally inflicted emotional distress upon Y.C.132 With

Count V, Plaintiff claims Baez deprived Y.C. of his right to be free from assault and

battery.133

Defendant Baez argues that he is entitled to summary judgment on these claims

because he is immune from liability under Ohio Rev. Code § 2744.03(A)(6) and because

Plaintiff’s claims fail on the merits.134

The Court addresses each argument in turn.

Ohio Statutory Immunity

Ohio Rev. Code § 2744.03(A)(6) provides protection from liability for employees of

political subdivisions unless one of the following applies:

(a) The employee’s acts or omissions were manifestly outside the scope of

the employee’s employment or official responsibilities;

(b) The employee’s acts or omissions were with malicious purpose, in bad

faith, or in a wanton or reckless manner;

(c) Civil liability is expressly imposed upon the employee by a section of the

Revised Code.

Construing the evidence in the light most favorable to Plaintiff, the Court cannot

conclude that Ohio Rev. Code § 2744.03(A)(6) shields Defendant Baez from liability. As

explained above there is a dispute of fact whether Defendant Baez acted intentionally,

recklessly, or in bad faith when he sprayed Y.C. with juice—any of which would defeat

immunity under Ohio Rev. Code § 2744.03(A)(6)(b).

132 Doc. 25 at 11.

133 at 13.

134 Doc. 45 at 22-24.

Intentional Infliction of Emotional Distress Claim (Count IV)

Plaintiff brings an intentional-infliction-of-emotional-distress claim against Defendant

Baez on the basis of the alleged juice-squirting incident.135

To establish a claim for intentional infliction of emotional distress under Ohio law, a

plaintiff must prove the following elements:

(1) the defendant intended to cause, or knew or should have known that his

actions would result in serious emotional distress;

(2) the defendant’s conduct was so extreme and outrageous that it went

beyond all possible bounds of decency and can be considered completely

intolerable in a civilized community;

(3) the defendant’s actions proximately caused psychological injury to the

plaintiff; and

(4) the plaintiff suffered serious mental anguish of a nature no reasonable

person could be expected to endure.136

Extreme and outrageous conduct is conduct that goes beyond any possible bounds

of decency and is so atrocious that it is “utterly intolerable in a civilized society.”137 “Mere

insults, indignities, threats, annoyances and petty oppressions, or other trivialities” are

insufficient to state a claim for relief.138 Furthermore, in order for emotional distress to be

“serious,” it must be an emotional injury “which is both severe and debilitating.”139

Construing the evidence in the light most favorable to Plaintiff, Plaintiff fails to show

intentional infliction of emotional distress. Specifically, Plaintiff fails to show that Y.C.

suffered serious mental anguish as a result of the incident. Y.C.’s sister says that Y.C. keeps

to himself more “and doesn’t really talk to us unless when needed.”140 However, Plaintiff

135 Doc. 25 at 11-13.

136 , 102 N.E.3d 38, 45 (Ohio Ct. App. 2017);

, 542 F.3d 1099, 1110 (6th Cir. 2008).

137 , 453 N.E.2d 666, 671 (1983) (abrogated on other grounds).

138

139 , 451 N.E.2d 759, 765 (1983).

140 Doc. 38 at 53.

submits no evidence of a significant change in Y.C.’s mental health treatment after the

incident. And Defendants submit evidence that Y.C. has been doing well in school since

the incident.141

Y.C.’s sister’s allegation, standing alone, does not show an emotional injury “which

is both severe and debilitating.”142 Accordingly, the Court GRANTS Defendant Baez’s

motion for summary judgment on Plaintiff’s intentional infliction of emotional distress

claim.

Assault and Battery Claim (Count V)

Plaintiff brings an assault-and-battery claim against Defendant Baez on the basis of

the alleged juice-squirting incident.143

To establish Plaintiff’s claim for assault and battery under Ohio law, she must show

“(1) that the officers acted with an intent to cause harmful or offensive contact and (2) that

such contact occurred (that’s battery) or that [Y.C.] that such contact would occur

(that’s assault).”144

Construing the evidence in the light most favorable to Plaintiff, the Court concludes

that Plaintiff has created a dispute of fact as to the battery. Plaintiff adduces evidence that,

with the juice-squinting incident, Defendant Baez intended to cause offensive contact and

that such contact occurred.

Accordingly, the Court DENIES Defendant Baez’s motion for summary judgment on

Plaintiff’s assault-and-battery claim.

141 Doc. 42 at 37.

142 , 451 N.E.2d at 765.

143 Doc. 25 at 13.

144 , 953 F.3d 402, 410 (6th Cir. 2020).

Conclusion

For these reasons, the Court GRANTS IN PART Defendants’ motions for summary

judgment.145 The following claims are DISMISSED: equal protection claims on the basis of

disability against both Defendants (Count I); equal protection claims on the basis of race or

ethnicity against both Defendants (Count I); all claims under the Fourth Amendment against

both Defendants (Count II); intentional infliction of emotional distress against both

Defendants (Count IV); assault and battery against the School District (Count V); and all

claims against Defendant Baez in his official capacity (Count I - IV). The Court DENIES

Defendants’ motions for summary judgment on all other counts.

IT IS SO ORDERED.

Dated: August 19, 2020 s/ ___________

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

145 Doc. 36; Doc. 45.