Mica Spady v. Bethlehem Area School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3535

_____________

MICA D. SPADY, Individually and

as Administratrix of the Estate of Juanya Demore Spady,

v.

THE BETHLEHEM AREA SCHOOL DISTRICT; JOSEPH

J. RAY; HARRISON BAILEY, III; CARLTON RODGERS;

JOHN AND JANE DOE #1; SUSAN DALTON, RN;

KATHLEEN HALKINS, RN; JOHN AND JANE DOES 2-X

Carlton Rodgers,

Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 5:12-cv-06731)

District Judge: Honorable Joel H. Slomsky

______________

Argued June 2, 2015

______________

Before: RENDELL, HARDIMAN, and VANASKIE,

Circuit Judges

(Opinion Filed: September 1, 2015)

Audrey J. Copeland, Esq. [ARGUED]

Marshall, Dennehey, Warner, Coleman & Goggin

620 Freedom Business Center, Suite 300

King of Prussia, PA 19406

Counsel for Appellant

Steven C. Ameche, Esq. [ARGUED]

Richard J. Orloski, Esq.

The Orloski Law Firm

111 North Cedar Crest Boulevard

Allentown, PA 18104

Counsel for Appellee

___________

OPINION OF THE COURT

___________

VANASKIE, Circuit Judge.

This action stems from the death of Juanya Spady, the

fifteen-year-old son of Appellee Mica Spady.1 Juanya died of

what appears to have been a rare form of asphyxiation known

as “dry drowning” or “secondary drowning,” shortly after his

participation in a mandatory swimming class run by his

physical education (“P.E.”) teacher, Appellant Carlton

Rodgers. Spady filed suit against Rodgers and the Bethlehem

Area School District (“BASD”), claiming violations of her

son’s civil rights under 42 U.S.C. § 1983. Rodgers moved for

summary judgment on the basis of qualified immunity, which

the District Court denied. Because we agree with Rodgers’s

contention on appeal that his conduct did not violate a clearly

established constitutional right, we will reverse the District

Court’s order denying summary judgment with instructions to

grant summary judgment in Rodgers’s favor.

1

For clarity, we will refer to Mica Spady as “Spady”

and to her son as “Juanya.”

2

I.

The facts of this case, as the District Court aptly noted,

are “undeniably tragic.” 2 Spady v. Bethlehem Area Sch.

Dist., No. CIV.A.12-6731, 2014 WL 3746535, at *1 (E.D. Pa.

July 30, 2014). In November 2010, Juanya Spady transferred

to Liberty High School, which is part of the BASD. A

fifteen-year-old, tenth-grade student, Juanya was enrolled in a

variety of classes, including a P.E. course taught by Rodgers,

who had been a full-time P.E. teacher at Liberty for

approximately four years and was a certified lifeguard.

As part of the P.E. curriculum, students rotated into a

two-week swimming course conducted at Liberty’s

swimming pool. During the last week in November and the

first week of December of 2010, Juanya’s P.E. class was

assigned to the swimming course. As per Rodgers’s policy,

students were required to be in the pool for the entirety of

each class or risk having points deducted from their grade.

This policy applied to non-swimmers as well as swimmers.

Rodgers acknowledged that he was made aware that Juanya

could not swim.

The classes were all taught in the same fashion, with

Rodgers standing at the side of the pool and instructing the

students for approximately 20 minutes on a specific stroke.

After each lesson concluded, students were allowed to swim

freely in the pool. In addition to Rodgers, a student lifeguard

also was “on duty,” although such supervision usually

consisted of monitoring the pool from a reclined position on

the bleachers. Non-swimming students could remain in the

shallow end during the entirety of the class, but were also

permitted to venture into the deep end by holding onto the

side of the pool, a practice referred to as “gutter grabbing.”

2

As we are obligated to do in reviewing a motion for

summary judgment, we recount the facts in the light most

favorable to Spady, the non-moving party. Frank C. Pollara

Grp., LLC v. Ocean View Inv. Holding, LLC, 784 F.3d 177,

179 n.1 (3d Cir. 2015).

3

Aside from these general procedures, there were no course

policies governing instruction or swimmer safety.

On December 2, 2010, Juanya’s first class of the day

was P.E., which commenced at approximately 8:20 a.m.

After roll was taken, Juanya entered the pool and swam in the

shallow end for the first ten to fifteen minutes of class while

Rodgers instructed the students from the side of the pool. At

the conclusion of the lesson, Juanya departed the shallow end

and began to “gutter grab” around the edge of the pool.

While in the deep end, he ran into a group of students and

was submerged for a matter of seconds, possibly inhaling or

swallowing water as he resurfaced. Juanya then exited the

pool and told Rodgers that his chest hurt. Rodgers responded

by telling Juanya to sit on the bleachers for a few minutes.

Several minutes later, Rodgers went over to check on

Juanya, who requested permission to remain out of the pool

for the rest of class. Rodgers denied the request and told him

to get back into the water. Juanya followed these instructions

and stayed in the shallow end for the remainder of the period.

The students vacated the pool at approximately 9:00 a.m. and

proceeded to the locker room to change.

A few minutes later, Juanya reported to English class,

which began at approximately 9:16 a.m. His teacher reported

that he was attentive. Abruptly, at around 10:30 a.m., nearly

an hour and a half after he left the pool, Juanya fell backward

from a seated position and hit the desk behind him. As he

rolled off his chair and onto the floor, he began to have a

seizure. Teachers observed labored breath, general

unresponsiveness, and a pink, frothy fluid escaping from

Juanya’s nose and mouth. A school nurse attempted to revive

Juanya while they waited for medical assistance. Shortly

thereafter, paramedics took Juanya by ambulance to St.

Luke’s Hospital. He died later that day.

During the course of this litigation, Spady provided an

expert medical report opining that Juanya died of a condition

known as “delayed drowning,” Supp App. 4, or “secondary

drowning,” which can occur when a small amount of water or

other fluid is inhaled into the lungs. If the fluid is not

4

removed, the lungs begin to spasm, causing a build-up of

other fluids, which in turn can cause the victim to asphyxiate

because the lungs cannot oxygenate the blood. This condition

can cause death anywhere from an hour to a day after the

initial inhalation of fluid and is extremely rare, accounting for

“only 1%-2% of drownings.” Supp. App. 83.

In December 2012, Spady filed this civil-rights action

against numerous parties, including Rodgers and the BASD,

who are the only remaining defendants at this juncture.

Spady asserted that the defendants violated Juanya’s

constitutional rights, triggering liability under 42 U.S.C. §

1983. More specifically, Count II of the complaint alleges a

Fourteenth Amendment due-process violation premised on

the state-created-danger theory of liability against Rodgers,

and Count IV raises a claim of municipal liability against

BASD based on a theory of deliberate indifference.

After the close of discovery, Rodgers moved for

summary judgment as to Count II, asserting that qualified

immunity precluded liability.3 By Memorandum and Order

filed July 30, 2014, the District Court denied the motion for

summary judgment, concluding that a genuine dispute of

material fact existed as to whether Rodgers violated Juanya’s

constitutional rights. Spady, 2014 WL 3746535 at *5. The

District Court also concluded that because it was unclear

“whether a constitutional violation actually occurred,” it need

not determine whether that right was “clearly established.”

Id. (citing Curley v. Klem, 499 F.3d 199, 208, 211 (3d Cir.

2007)). Rodgers timely appealed.

II.

The District Court had jurisdiction under 28 U.S.C. §§

1331 and 1343(a)(3), and we have appellate jurisdiction under

28 U.S.C. § 1291 by way of the collateral order doctrine.

3

BASD also moved for summary judgement on Count

IV. The District Court denied summary judgement on Count

IV and that ruling is not before us.

5

Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 985 (3d Cir.

2014). “It is well established that an order denying summary

judgment on qualified immunity grounds may qualify as an

appealable final decision under the collateral order doctrine”

where the appeal presents a pure question of law. Id. at 986

(citing Mitchell v. Forsyth, 472 U.S. 511, 526–30 (1985)).

“Whether an asserted federal right was clearly established at a

particular time, so that a public official who allegedly

violated the right has no qualified immunity from suit,

presents a question of law[.]” Elder v. Holloway, 510 U.S.

510, 516 (1994). Therefore, we have jurisdiction to consider

whether the constitutional right at issue was clearly

established on December 2, 2010.4

4

Seizing upon the following language from Curley—

“‘[i]f, and only if, the court finds a violation of a

constitutional right,’ the court moves to the second step of the

analysis and asks whether immunity should nevertheless

shield the officer from liability,” 499 F.3d at 207 (quoting

Scott v. Harris, 550 U.S. 372 (2007))—Spady argues we lack

jurisdiction to consider whether the asserted right was clearly

established on December 2, 2010. Spady’s argument is

without merit. Curley neither speaks to our jurisdiction, nor

limits it in any manner.

We also take this opportunity to clarify Curley, which

the District Court cited in declining to reach the “clearly

established” prong of the qualified immunity analysis. The

process for determining the applicability of qualified

immunity discussed in Curley was set out in Saucier v. Katz,

533 U.S. 194 (2001). Under Saucier, courts were required to

first decide whether a constitutional violation actually

occurred, and only then consider whether the right at issue

was clearly established at the time of the violation. Id. at

201–202. This rigid system of analysis was overruled by

Pearson v. Callahan, which provided that courts should

“exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be

addressed first.” 555 U.S. 223, 236 (2009). Under either test,

however, the court may not deny a summary judgment

6

III.

“When properly applied, [qualified immunity] protects

‘all but the plainly incompetent or those who knowingly

violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085

(2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

In considering the applicability of qualified immunity, courts

engage in a two-pronged examination. First, a court must

decide “whether the facts that a plaintiff has . . . shown make

out a violation of a constitutional right.” Pearson, 555 U.S at

232. And second, the court must determine “whether the

right at issue was ‘clearly established’ at the time of

defendant’s alleged misconduct.” Id. (citation omitted).

Courts may begin their consideration with either prong. Id. at

236.

Here, the District Court began with the first prong and

analyzed Spady’s constitutional claim under the state-created-

danger theory, which is an exception to the general rule that

“[t]here is no affirmative right to governmental aid or

protection under the Due Process Clause of the Fourteenth

Amendment.” Ye v. United States, 484 F.3d 634, 636 (3d Cir.

2007) (citing Deshaney v. Winnebago Cnty. Dep’t of Soc.

Servs., 489 U.S. 189 (1989)). We adopted this exception in

Kneipp v. Tedder, where we explained that a plaintiff must

show the following:

motion premised on qualified immunity without deciding that

the right in question was clearly established at the time of the

alleged wrongdoing. See Sherwood v. Mulvihill, 113 F.3d

396, 399 (3d Cir. 1997) (“[T]he plaintiff bears the initial

burden of showing that the defendant’s conduct violated

some clearly established statutory or constitutional right.”

(emphasis added)). That is, while issues of fact may preclude

a definitive finding on the question of whether the plaintiff’s

rights have been violated, the court must nonetheless decide

whether the right at issue was clearly established. Failure to

do so is error.

7

(1) the harm ultimately caused

was foreseeable and fairly direct;

(2) the state actor acted in willful

disregard for the safety of the

plaintiff; (3) there existed some

relationship between the state and

the plaintiff; (4) the state actors

used their authority to create an

opportunity that otherwise would

not have existed for the [harm] to

occur.

95 F.3d 1199, 1208 (3d Cir. 1996) (quoting Mark v. Borough

of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995)). As reflected

in the District Court’s opinion, the state-created-danger

analysis necessitates a fact-intensive inquiry.

Pearson recognized, however, that there are instances

where a case is most easily resolved by addressing whether

the right was clearly established at the time of the alleged

violation. See 555 U.S. at 237; Werkheiser v. Pocono Twp.,

780 F.3d 172, 176 (3d Cir. 2015). We conclude this is such a

case and will address the second prong of the qualified

immunity analysis at the outset.

A.

Before deciding whether the constitutional right Spady

relies upon was clearly established, we must first frame the

precise contours of that right. Spady’s claim is derived from

the Due Process Clause of the Fourteenth Amendment, which

reads that “[n]o state shall . . . deprive any person of life,

liberty, or property, without due process of law[.]” U.S.

Const. amend. XIV, § 1. Spady argues that this case

implicates a student’s “constitutional right to be free from

school officials’ deliberate indifference to, or acts that

increase the risk of serious injury from unjustified invasions

of bodily integrity[.]” Appellee’s Br. at 24 (quoting Sciotto v.

Marple Newton Sch. Dist., 81 F. Supp. 2d 559, 570 (E.D. Pa.

1999)).

8

We are mindful, however, that courts are “not to define

clearly established law at a high level of generality.” al-Kidd,

131 S. Ct. at 2084 (citations omitted). Instead, courts “must

define the right allegedly violated at the appropriate level of

specificity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir.

2012). Accepting Spady’s broad version of the right at issue

“would . . . convert the rule of qualified immunity that our

cases plainly establish into a rule of virtually unqualified

liability simply by alleging violation of extremely abstract

rights.” Anderson v. Creighton, 483 U.S. 635, 639 (1987).

We are thus required to frame the right at issue “in a more

particularized, and hence more relevant, sense,” Anderson,

483 U.S. at 640, “in light of the case’s specific context, not as

a broad general proposition,” Saucier, 533 U.S. at 201.

In this case, the specific context is a student who

experiences a brief submersion under water, exits the pool

and complains of chest pain, is ordered to return to the pool

after a several-minute respite, then stays in the shallow end of

the pool for the remainder of the class, and does not exhibit

signs of serious distress until more than one hour later. The

specific constitutional right under the Due Process Clause in

this context is the right to affirmative intervention by the state

actor to minimize the risk of secondary or dry drowning.

And, for qualified immunity purposes, the question is whether

the law in this context was so well-established that it would

have been apparent to a reasonable gym teacher that failure to

take action to assess a non-apparent condition that placed the

student in mortal danger violated that student’s constitutional

right under the state-created-danger theory of liability.

B.

In order for a right to be clearly established there must

be applicable precedent from the Supreme Court, which there

is not, and even if “‘a robust consensus of cases of persuasive

authority’ in the Court of Appeals ‘could itself establish the

federal right’” as Spady alleges, there is no such consensus

here. Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per

curiam) (quoting City & Cnty. of S.F. v. Sheehan, 135 S. Ct.

1765, 1778 (2015)). Although Spady does not have to

produce “a case directly on point, . . . existing precedent must

9

have placed the statutory or constitutional question beyond

debate.” al-Kidd, 131 S. Ct. at 2083 (citations omitted)

(emphasis added). Stated another way, a court need not find

that “the very action in question has previously been held

unlawful,” Anderson, 483 U.S. at 640, but rather may

conclude that the firmly settled state of the law, established

by a forceful body of persuasive precedent, would place a

reasonable official on notice that his actions obviously

violated a clearly established constitutional right. Taylor, 135

S. Ct. at 2044; al-Kidd, 131 S. Ct. at 2083.

Turning to the present matter, no Supreme Court case

has established a right to adequate safety protocols during

public-school swimming class. Indeed, no decision of the

Supreme Court even discusses the right of students to have

adequate safety protocols in these settings or in any analogous

setting. Spady also concedes that our jurisprudence has not

recognized a state-created-danger theory on these or similar

facts. Nonetheless, Spady argues that our decision in Kneipp

v. Tedder, and a holding of the Eastern District of

Pennsylvania in Sciotto v. Marple Newton School District,

support her argument that the right at issue was clearly

established. We address each case in turn.

The facts of Kneipp are not even remotely close to the

facts presented here. There, several police officers came

upon an intoxicated couple walking home and stopped them

for a brief period. 95 F.3d at 1201. The police observed the

woman to be drunk—she was having difficulty standing,

could not follow simple instructions, and smelled of urine.

Id. The police officers then sent her male companion home,

but continued to detain her for an additional period of time.

Id. at 1202. The officers later released her from custody to

walk home alone, and she fell down an embankment,

sustaining serious injuries. Id. at 1203. We held that:

[T]he state-created danger theory

is a viable mechanism for

establishing a constitutional claim

under 42 U.S.C. § 1983. When

viewed in the light most favorable

to the legal guardians, the

10

evidence submitted was sufficient

to raise a triable issue of fact as to

whether the police officers

affirmatively placed [Kniepp] in a

position of danger.

Id. at 1211.

The act of separating a visibly intoxicated person from

her traveling companion and then forcing her to walk home

alone—which necessarily increased the obvious risk that she

would fall and injure herself, id. at 1209—is far afield from

having a student participate in swim class as part of a regular

P.E. curriculum. Consequently, it cannot be the case that

Kniepp put Rodgers, a public school gym teacher, on notice

regarding the alleged constitutional violation at issue here.

Spady’s reliance on Sciotto is equally unavailing. That

case involved a wrestling coach who pitted a 16-year-old,

110-pound sophomore wrestler against a 22-year-old, 150-

pound former member of a Division I wrestling team. 81 F.

Supp. 2d at 561–62. While the two were grappling, the

college athlete severely injured the victim’s spine, ultimately

resulting in quadriplegia. The district court held that “a

student’s right, in a school setting, to freedom from school

officials’ deliberate indifference to, or acts that increase the

risk of serious injury from unjustified invasions of bodily

integrity perpetrated by third parties” was clearly established

based on its canvassing of Supreme Court cases and our

precedent. Id. at 570. Sciotto relied principally on Ingraham

v. Wright, which held “that Fourteenth Amendment liberty

interests are implicated” when a school official imposes

punishment “by restraining the child and inflicting

appreciable physical pain,” 430 U.S. 651, 674 (1977),5 and

5

Although recognizing that various constitutional

rights were implicated by corporal punishment in public

schools, the Supreme Court held that

[t]he Eighth Amendment’s

prohibition against cruel and

11

Stoneking v. Bradford Area School District, where we

recognized “a student’s right to be free from sexual assaults

by his or her teachers,” 882 F.2d 720, 727 (3d Cir. 1989).6

We do not deny that Sciotto and this matter present

heart-wrenching circumstances. To equate the intentional

infliction of painful corporal punishment or the sexual

molestation of a student, however, with a student-athlete’s

unfortunate accident during wrestling practice or a rare

unusual punishment is

inapplicable to school paddlings,

and the Fourteenth Amendment’s

requirement of procedural due

process is satisfied by Florida’s

preservation of common-law

constraints and remedies. We

therefore agree with the Court of

Appeals . . . that petitioners

cannot recover damages on the

basis of any Eighth Amendment

or procedural due process

violation.

Ingraham, 430 U.S. at 683.

6

Sciotto also relies upon D.R. by L.R. v. Middle Bucks

Area Vocational Technical School, where we held there was

no viable state-created-danger claim when students

committed sexual assaults against other students while in

school. 972 F.2d 1364, 1374 (3d Cir. 1992) (en banc).

Although characterizing it as “an extremely close case,” id.,

we declined to find that failure to properly monitor a

classroom, which resulted in students being sexually

assaulted, or to report those sexual assaults to the victims’

parents or other authorities made out a constitutional

violation, id. at 1376. Rather than lending support to Spady’s

position, our reluctance to extend Stoneking further illustrates

its inapplicability to this matter.

12

instance of delayed drowning after swim class is a bridge too

far. The case law simply did not inform a reasonable gym

teacher that the failure to asses a student who briefly goes

under water for the possibility of dry drowning violated that

student’s constitutional right to bodily integrity free from

unwarranted intrusions by the state.7

Much like Ingraham and Stoneking, courts that have

found colorable constitutional violations in school-athletic

settings did so where state actors engaged in patently

egregious and intentional misconduct, which is notably absent

from this case. For example, in Neal ex rel. Neal v. Fulton

County Board of Education, the Eleventh Circuit concluded

that a student athlete had made out “a violation of his right

under the Fourteenth Amendment to be free from excessive

corporal punishment,” 229 F.3d 1069, 1076 (11th Cir. 2000),

after a coach struck the student with a blunt object, knocking

out his left eye, id. at 1071; see also Johnson v. Newburgh

Enlarged Sch. Dist., 239 F.3d 246, 252 (2d Cir. 2001) (no

qualified immunity where gym teacher picked up a student by

his throat and rammed his head into bleachers and a fuse

7

Indeed, when faced with factual scenarios analogous

to Sciotto—i.e., injuries sustained during school athletic

activities—several district courts in this circuit have reached

decidedly different conclusions and declined to find a

constitutional violation. See, e.g., Lavella v. Stockhausen,

No. 13-CV-0127, 2013 WL 1838387 (W.D. Pa. May 1, 2013)

(dismissing civil rights action premised on state-created

danger after previously concussed cheerleader was struck in

the head by another cheerleader during practice); Leonard v.

Owen J. Roberts Sch. Dist., No. CIV.A.08-2016, 2009 WL

603160 (E.D. Pa. Mar. 5, 2009) (no state-created danger

when student was impaled by a javelin thrown by another

student); Yatsko v. Berezwick, No. 3:06-CV-2480, 2008 WL

2444503, at *6 (M.D. Pa. June 13, 2008) (failing to withhold

a concussed student from returning to a basketball game did

“not constitute . . . a substantive due process violation”).

These cases demonstrate there is no vigorous consensus of

authority to support Sciotto’s broad holding.

13

box). Such blatantly excessive punishment is far afield from

the typical risks that are associated with participation in

athletic activities, see, e.g., Davis v. Carter, 555 F.3d 979,

984 (11th Cir. 2009) (no constitutional violation stemming

from student-athlete’s death after rigorous football practice),

or even the minimal type of intentional physical contact that,

while deplorable, will rarely make out a constitutional

violation, see, e.g., Lillard v. Shelby Cnty. Bd. of Educ., 76

F.3d 716, 726 (6th Cir. 1996) (“While we do not mean to

suggest that school systems should tolerate a teacher who

slaps a student in anger, neither do we conclude that one slap,

even if made for no legitimate purpose, rises to the level of a

constitutional violation.”).

Aside from Kniepp and Sciotto, Spady has “not

brought to our attention”—and we cannot find—“any cases of

controlling authority in [any] jurisdiction at the time of the

incident which clearly established the rule on which [she]

seek[s] to rely, nor [has she] identified a consensus of cases

of persuasive authority,” Wilson v. Layne, 526 U.S. 603, 617

(1999) (modifications added), whereby a reasonable gym

teacher would have been aware that his actions were

unconstitutional.8 Accordingly, we hold that Juanya did not

have a clearly established constitutional right to dry-

drowning-intervention protocols while participating in P.E.

class.9 Our conclusion is buttressed by numerous rulings

8

The closest cases to the present matter we have

located are Estate of C.A. v. Castro, 547 F. App’x 621 (5th

Cir. 2013), which involved the drowning death of a student

during a science experiment, and Langan ex rel. Langan v.

Grand Rapids Public School System, No. 94-CV-174, 1995

WL 17009502 (W.D. Mich. Feb. 28, 1995), which concerned

a student who suffered a neck injury after diving into the

shallow end of a school’s pool. Both courts concluded that

the plaintiffs failed to make out a constitutional claim. C.A.,

547 F. App’x at 625; Langan, 1995 WL 17009502, at *4.

Thus, they do not support Spady’s position.

9

Spady points to a host of safety measures that her

aquatic expert claims should have been implemented and,

14

from other courts that address injuries caused by public-

school teachers. See, e.g., Nix v. Franklin Cnty. Sch. Dist.,

311 F.3d 1373, 1378–79 (11th Cir. 2002) (no viable

constitutional claim where student died after touching

exposed high-voltage wire during science experiment);

Voorhies v. Conroe Ind. Sch. Dist., 610 F. Supp. 868, 873

(S.D. Tex. 1985) (no constitutional claim where shop teacher

removed safety guard on a power saw causing student to

severely lacerate hand).

Our holding is also in accord with the traditional limits

of the Fourteenth Amendment. As observed in DeShaney:

The [Due Process] Clause is

phrased as a limitation on the

State’s power to act, not as a

guarantee of certain minimal

levels of safety and security. It

forbids the State itself to deprive

individuals of life, liberty, or

property without “due process of

law,” but its language cannot

fairly be extended to impose an

affirmative obligation on the State

to ensure that those interests do

not come to harm through other

means.

489 U.S. at 195 (emphasis added). “[H]ard as our sympathies

may pull us, our duty to maintain the integrity of substantive

potentially, could have averted this tragedy. Even assuming

Rodgers was charged with implementing these measures—

rather than the BASD—this argument does nothing to change

our conclusion that Rodgers is entitled to qualified immunity.

See Sheehan, 135 S. Ct. at 1777 (“[A] plaintiff cannot

‘avoi[d] summary judgment by simply producing an expert’s

report’” opining that the state actor’s conduct “was

imprudent, inappropriate, or even reckless.” (quoting

Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002))).

15

law pulls harder.” Turner v. Atl. Coast Line R.R. Co., 292

F.2d 586, 589 (5th Cir. 1961).

IV.

For the aforementioned reasons, we will reverse the

District Court’s Order of July 30, 2014, denying Rodgers’s

motion for summary judgment.

16