Kirkland Ex Rel. Jones v. Greene County Board of Education

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 03-10583 October 07, 2003

_________________________ THOMAS K. KAHN

D. C. Docket No. 01-01008-CV-C-W CLERK

CORETTA KIRKLAND,

as parent & next friend of

Demario Jones, a minor,

Plaintiff-Appellee,

versus

GREENE COUNTY BOARD OF

EDUCATION,

ROBERT ELLIOTT, in his

official & individual

capacity,

Defendants,

JAMES MORROW, in his

official & individual

capacity,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(October 7, 2003)

Before BIRCH, BARKETT and HILL, Circuit Judges.

BARKETT, Circuit Judge:

James Morrow, the principal of Eutaw High School in Green County,

Alabama, appeals the denial of his motion for summary judgment on the basis of

qualified immunity. Demario Jones, a thirteen-year-old student called into

Morrow’s office for disciplinary reasons, claims that Morrow struck him with a

metal cane in the head, ribs and back, leaving a large knot on his head and causing

him to suffer continuing migraine headaches. Coretta Kirkland filed suit under the

Fourteenth Amendment and 42 U.S.C. § 1983 as next friend to her son, and the

district court denied Morrow’s claim for qualified immunity.

We have jurisdiction over this interlocutory appeal to the extent that it

involves issues of law rather than challenges to the sufficiency of the evidence.

Cottrell v. Caldwell, 85 F.3d 1480, 1484-85 (11th Cir. 1996). For purposes of this

qualified immunity appeal, we take the facts as alleged by Kirkland in the light

most favorable to her claims. Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d

1179, 1185 (11th Cir. 2002).

Morrow first argues that the facts as alleged do not give rise to a

constitutional violation. However, excessive corporal punishment may be

actionable under the Due Process Clause when it involves “arbitrary, egregious,

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and conscience-shocking behavior.” Neal v. Fulton County Bd. of Educ., 229 F.3d

1069, 1075 (11th Cir. 2000).1 A student’s allegations may rise to this level when

“(1) a school official intentionally used an amount of force that was obviously

excessive under the circumstances, and (2) the force used presented a reasonably

foreseeable risk of serious bodily injury.” Id. Repeatedly striking a thirteen-year-

old student with a metal cane, including once on the head as he was doubled over

protecting his chest, when he was not armed or physically threatening in any

manner,2 obviously fulfills both criteria. Thus, cast in the light most favorable to

Kirkland, the alleged facts establish a constitutional violation.

Notwithstanding that his actual conduct may have violated the Constitution,

Morrow agues that at the time of the incident the right to be free from corporal

punishment was not clearly established. Morrow misses the point. The issue here

is not whether any corporal punishment violates the Constitution, but whether the

1

We agree with Morrow that disciplining students lies within his general discretionary

authority. Thus, he is eligible for the qualified immunity defense. See Harbert Int’l, Inc. v. James,

157 F.3d 1271, 1282 (11th Cir. 1998). Of course, if general student discipline were not within the

scope of his authority, he would be liable for damages.

2

Morrow cites two earlier disciplinary incidents involving Jones, one of which involved

the confiscation of a weapon from his school bag, and appears to suggest that even if Jones did

not pose an actual threat at that moment, the prior incidents supported the use of excessive and

unconstitutional force. We unequivocally reject such an argument. The relevant question is

whether at the time force was used, the force used was excessive in light of the circumstances at

that time.

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nature and extent of the force applied here was constitutional. Although Neal

elaborated upon our case law after this incident occurred, the Supreme Court had

already held that the deliberate infliction of physical pain by school authorities as

punishment for misconduct implicated Fourteenth Amendment liberty interests.

Ingraham v. Wright, 430 U.S. 651, 674 (1977). Similarly, the Supreme Court of

Alabama had already noted that “the infliction of corporal punishment in public

schools is a deprivation of substantive due process when it is arbitrary, capricious,

or wholly unrelated to the legitimate state goal of maintaining an atmosphere

conducive to learning.” C.B. v. Bobo, 659 So. 2d 98, 103 (Ala. 1995) (quoting

Doe v. Taylor Ind. Sch. Dist, 15 F.3d 443, 451 (5th Cir. 1994)) (internal quotation

marks omitted). Thus, the qualified immunity question turns on whether

Morrow’s actions as described by Kirkland violated these principles. Having

considered the record before us, we AFFIRM the determination of the district

court that Morrow was not entitled to qualified immunity.

AFFIRMED.

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