Petition for Writ of Certiorari — Smith v. Stoneking

89-780

, U.S,

| FILED

No. | NOV 14 1389

IN THE SUPREME COURT JOSEPH P. SPANIOL, 5M

OF THE UNITED STATES

3 7 a

FREDERICK SMITH, in his individual and official

capacity as Principal Bradford Area High School;

RICHARD MILLER, in his individual and official

Capacity as assistant principal of the Bradford

High School; and FREDERICK SHUEY, in his

individual and official capacity as Superintendent

of the Bradford Area School District

Petitioners

vs

KATHLEEN STONEKING

= Respondent

On Writ of Certiorari

to the United States Court of

Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Kenneth D. Chestek

Murphy, Taylor, Trout & Chestek, P.C.

518 State Street

Erie, Pennsylvania 16501

(814) 459-0234

James D. McDonald, Jr.

The McDonald Group

456 West Sixth Street

Erie, Pennsylvania 16507

(814) 456-5318

Attorneys for Petitioners

I. QUESTIONS PRESENTED

_A. Are school students “at liberty” so that, under

the rationale of this Court in DeShaney v. Winnebago

County there exists no duty under the Fourteenth Amend-

ment for school administrators to protect them from

criminal assaults?

B. Was there clearly established law in 1979 that

schoo! administrators had a duty under the Fourteenth

Amendment to protect school students from criminal

assaults?

C. Can this Court’s holding in City of Canton v.

Harris that municipal bodies may be held accountable for

a policy amounting t» “deliberate indifference” to the

rights of citizens be extended to create a new theory ot

personal liability for municipal officials?

wile

Il. TABLE OF CONTENTS

eS yy eG | oy | i i

NM EEEIO ED scp c tsa cencssene iil

Ray 8 Be ae tay. 8 ig) | > ee v

ee 8. Ge | Rr l

A. Procedural History of This Case ... 1

B. pucented Proceeding ............ 2

V. STATEMENT OF JURISDICTION ......... 5

V1. CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED ..... 7

A. Constitutional Provisions ........... 7

Se a ee 7

II As x ccs cnc nccccecccs 8

VI. STATEMENT OF CASE ...........--- 9

Ne oe ig og bic ek «04.6 0-0-0 0 0:8 1]

A. Summary of Argument .......... 11

B. The Court of Appeals Failed to

Resolve the Question Posed by This

Fee ea 12

l. The Court of Appeals opin-

ion conflicts with Supreme

Court precedemt .......5.

tw

The Court of Appeals opinion

conflicts with rulings in other

a are Te ee eee

3. The Court of Appeals opinion

conflicts with other rulings of

3 er ee

&. Smith, Miller and Shuey Are Entitled

to Qualified Immunity ..........

D. The Court of Appeals Has Improper-

ly Applied the Principles of Munici-

pal Liability Under City of Canton to

Individual Defendants ..........

ae ee 8 Beer ere roe COR eee

-iv-

16

17

i9

iil. TABLE OF AUTHORITIES

Constitutional Provisions

United States Constitution, Amendment 14, Section 1. 7

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ....... 19

City of Canton v. Harris, 109 S.Ct. 1197 (1989) . 11, 23,

24, 28

DeShaney v. Winnebago County Department of Social

Services, 489 U.S. , 109 S.Ct. 998 (1989) .. 2, 3, 11-14,

17-19, 24

Doe v. Bobbitt, 881 F.2d 510 (7th Cir. 1989) ...... 17

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ..... 19, 21

Ingraham v. Wright, 430 U.S. 651 (1977) ......... 16

Milburn v. Anne Arundel County Department of Social

Services, 871 F.2d 474 (4th Cir. 1989), cert. denied 1989

US. Lee SieP COUOOD bbw ceweeae hen ee eee 17

Mitchell v. Forsyth, 472 U.S. 511 (1985) .... 5, 13, 20

Philadelphia Police and Fire Association for Handicapped

Children, Inc., et al v. City of Philadelphia, 874 F.2d 156

tot eS, | eer er ere er er 17, 19, 26

Rizzo v. Goode, 423 U.S. 362 (1976) .... 11, 23, 26-28

1

Smith v. Sowers, No. 88-1350, United States Supreme Co

Sowers \. Bradford Area School District et al., C.A. No. 88-

$7 Erie, United States District Court for the Western

aMewict of Penmptvania «osc cvcsesestwhwens 2

Sowers \. Bradford Area School District et al., No. 88-3640

in the United States Court of Appeals for the Third

COUR .ccccctsene cau sewn eeeaee 2, 3, 22

Youngberg v. Romeo, 457 U.S. 307, (1982) 2.2... 22

Statutes and Rules

8 TOLBA GIST civicecnbaccetene 8. 14

8 USL. § 1A 2 cccccav eaves <u eee 5

yah oe BS. Meryrrerrie er ee 5

28 US.C. § 1983 .........5,8 9, 2 22, 23, 26-28

-Vi-

[V. OPINIONS BELOW

A. Procedural History of This Case

The Opinion and Order of the United States Court

of Appeals for the Third Circuit on remand (the Order

sought to be reviewed) is printed in the Appendix hereto,

page |.

The procedural history of this appeal is as follows:

On August 28, 1987, the United States District Court for

the Western District of Pennsylvania, at Civil Action No.

87-63 E in that Court, denied a Motion for Summary

Judgment submitted by all Defendants; its Opinion is

reported at 667 F.Supp. 1088 (W.D.Pa. 1988), and is

printed in the Appendix hereto at p. 73. Defendants

Frederick Smith, Richard Miller and Frederick Shuey

[hereinafter “Smith, Miller and Shucy”| appealed that

Order to the United States Court of Appeals for the

Third Circuit insofar as the District Court had denied

their Motion for Summary Judgment on the basis of

qualified immunity. The Court of Appeals affirmed the

District Court by Opinion and Order dated September 12,

1988, at No. 87-3637 in that Court. That Opinion is

reported at 856 F.2d 594 (3d Cir. 1988), and is printed in

the Appendix hereto at p. 121.

Smith, Miller and Shuey then filed a timely Peti-

tion for Writ of Certiorari with this Honorabie Court.

This Court granted the petition on March 6, 1989, sum-

marily vacated the Order of the Court of Appeals, and

A,

remanded the case for reconsideration in light of this

Court’s ruling in the case of DeShaney v. Winnebago

County Department of Social Services, 489 U.S. , 109 S.Ct.

998 (1989). That Order is printed in the Appendix hereto

at p. 151 and is reported at 109 S.Ct. 1333.

On remand, the Court of Appeals again affirmed

the District Court by Opinion and Order dated August 16,

1989. As noted, that Opinion is printed in the Appendix

beginning at page 1. It is this Opinion and Order which is

the subject of the current petition.

B. Related Proceeding

This case is related to a second proceeding also

pending in this Honorable Court. One of the witnesses in

this case, Judy Grove (now by marriage Sowers) alleged

that the same former teacher assaulted her in his home

one afternoon during summer vacation when she volun-

tarily visited him there while she was intoxicated. She

made claims similar to those asserted by Stoneking in this

case against the same defendants.

On August 29, 1988, the United States District

Court denied a Motion to Dismiss by the Defendants,

Sowers v. Bradford Area School District et al., C.A. No. 88-

57 Erie in that Court. The Opinion of the District Court

in that case is reported at 694 F.Supp. 125 and is reprint-

ed in the Appendix hereto at page 155. The Court of

Appeals affirmed on January 31, 1989, by judgment order

Stating that the prior ruling of that Court in Sioneking “is

essentially controlling here.” Sowers v. Bradford Area

x %

School District et al., No. 88-3640 in the United States

Court of Appeals for the Third Circuit. That Order is

reproduced in the Appendix hereto at p. 197.

After a timely petition, on April 3, 1989 this Court

granted certiorari, vacated that judgment and remanded

that case as well for reconsideration in light of DeShaney.

Smith v. Sowers, No. 88-1350 in this Court. That Order is

reproduced in the Appendix at p. 203. On remand, the

Court of Appeals again affirmed the District Court, again

by judgment order holding that “an affirmance at this

stage of the litigation is essentially required by the panel's

opinion on remand from the Supreme Court in Stoneking

.. .. Judgment Order at No. 88-3640 in that Court,

September 28, 1989. That Order is reproduced in the

Appendix at p. 207.

A Petition for a Writ of Certiorari has been pre-

pared in that case and is intended to be filed simultane-

ously with this Petition.

ie

V. STATEMENT OF JURISDICTION

Jurisdiction of this Honorable Court is invoked

pursuant to 28 U.S.C. § 1254.

The Opinion and Order of the United States Court

of Appeals for the Third Circuit was entered on August

16, 1989. App., page 1. A Petition for Rehearing in banc

was filed and denied by the Court on September 12, 1989.

Jurisdiction for the appeal to the United States

Court of Appeals tor the Third Circuit was based upon 28

U.S.C. § 1291. The appeal to the United States Court of

Appeals for the Third Circuit was made in accord with

Mitchell v. Forsyth, 472 U.S. 511 (1985), which holds that

a demal of a claim of qualified immunity is an appealable

final order within the meaning of 28-U.S.C. § 1291.

Jurisdiction of the United States District Court for

the Western District of Pennsylvania was invoked by

Plaintiff based upon 28 U.S.C. § 1983.

VI. CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The following are the constitutional provisions and

statutes involved in this appeal:

A. Constitutional Provisions

All persons born or naturalized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States under the State wherein they reside.

No state shall make or enforce any law

which shall abridge the privileges or immun-

ities of citizens of the United States; nor

shall any State deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its juris-

diction the equal protection of the laws.

United States Constitution, Amendment 14, Section 1.

B. Federal Statutes

Every person who, under color of any

Statute, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes to

be subjected, any citizen of the United

States or other person within the jurisdic-

R, 3

tion thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit and

equity, or other proper proceeding for re-

gress. For the purposes of this section, any

Act of Congress applicable exclusively to

the District of Columbia shall be considered

to be a statute of the District of Columbia.

42 U.S.C. § 1983

C. State Statutes

Every teacher, vice principal and principal

in the public schools shall have the right to

exercise the same authority as to conduct

and behavior over the pupils attending his

school, during the time they are in attend-

ance, including the time required in going

to and from their homes, as the parents,

guardians or persons in parental relation to

such pupils may exercise over them.

24 Pa.C.S.A. § 13-1317.

VII. STATEMENT OF CASE

The record supports the following findings of fac:

In the fall of 1979, a high school senior, Judy Grove (now

by marriage Sowers), complained to Smith and Miller that

she had been sexually assaulted the previous summer after

she had gone to Wright’s house, while intoxicated, follow-

ing a family sponsored gathering. An investigation follow-

ed in which Wright denied the charges. Notwithstanding

this denial, Smith ordered Wright never to get into a “one

on one” situation with female students again. Grove

alleged no further contact with Wright; she graduated in

June, 1980.

The following fall (1980), Stoneking alleges that

Wright began to make sexual advances towards her while

she was babysitting for him. She alleges that sexual abuse

then began during private music lessons at his home or

at the school; in his car; during the school day when “the

opportunity arose”; and even after her graduation in 1983

when Stoneking returned to Bradford during a college

vacation. She also claimed that Wright abused her in a

dormitory room during a summer band camp at Indiana

University of Pennsylvania after she had graduated from

high school and she voluntarily visited him there.

Stoneking never told her parents, nor any emplo-

yee of the school district, about this conduct; nor did she

ever report it to the police or any of her friends. She

does not allege that she was ever intimidated, threatened

-9.

or coerced by any school administrator, nor does she even

contend that any school administrator actually knew at

any time that she was being assaulted by Wright.

-10-

VII. ARGUMENT

A. Summary of Argument

The Court of Appeals failed to explicitly resolve

the direct question posed by this Court when it granted

certiorari and remanded the case for reconsideration in

light of DeShaney. However, the practical effect of the

opinion is to leave these school officials exposed to trial

and possible liability under a theory that they had a duty

to protect school students from harm, which duty they

allegedly failed to discharge. This sub silentio holding is

directly contrary to DeShaney.

The Court of Appeals acknowledged, however, that

there was “uncertainty” in the law regarding the duty to

protect. On that basis alone, Smith and Miller should

have been granted immunity and dismissed from the suit.

The alternative rationale employed by the Court of

Appeals is also insufficient. The Court extended the ra-

tionale of this Court’s holding last Term in City of Canton

v. Harris, 109 §.Ct. 1197 (1989), to create a new theory of

personal liability for school officials in their individual

capacities. But the Court does not explain how a failure

to properly perform official duties results in personal

liability. The Court’s rationale conflicts with this Court’s

prior holding in Rizzo v. Goode, 423 U.S. 362 (1976).

The notion that public officials can be held person-

ally liable for acts done within the scope of their official

-|]-

duties is both novel and dangerous, and ought to be

reviewed by this Honorable Court.

B. The Court of Appeals Failed to Resolve the Question

Posed by This Court

When this Honorable Court granted certiorari in

this case initially, it vacated the judgment of the Court of

Appeals and remanded the case with specific instructions

to reconsider its opinion “in light of DeShaney”. App. at

p. 151. But the Court of Appeals avoided this question,

ostensibly grounding its decision instead on a new theory

of liability.

The failure of the Court of Appeals to expressly

rule on the DeShaney issue has the practical effect of

denying Smith, Miller and Shuey’s claim of qualified im-

munity with respect to the “duty to protect” theory of

liability. In the current posture of the case, the trial court

may choose to charge the jury that Smith, Miller and

Shuey had a duty under the Fourteenth Amendment to

protect Stoneking from the harm which allegedly befell

her; the opinion of the Court of Appeals broadly hints

that such a charge would be acceptable to it. Thus Smith,

Miller and Shuey have for all practical purposes lost their

immunity from suit with respect to this theory of liability.

This is just as effective as an express holding that a duty

to protect exists under the Fourteenth Amendment.

The Court of Appeais did discuss DeShaney,

strongly suggesting that it would have ruled that its prior

34,

ruling was “not inconsistent with the DeShaney opinion.”

Slip Opinion at p. 7, App. p. 9. But the Court refused to

make an explicit holding on this basis, “because the uncer-

tainty of the law in this respect may cause further delay.”!

The Court then announced a different theory under which

it affirmed its prior ruling.”

Smith, Miller and Shuey respectfully suggest to this

Court that the response of the Court of Appeals is not

sufficient. If the law in this area is uncertain, it is the

Court’s job to resolve the uncertainty; the doctrine of

qualified immunity requires this.°

This statement would seem to compel a ruling that Smith, Miller, and

Shuey are entitled to qualified immunity, because liability cannot attach

unless the law regarding a duty to protect was “clearly established” at

the time of the incidents of which Stoneking complains. See discussion

at p. 20, infra.

tv

The Court of Appeals went on to, in effect, decide a motion for sum-

mary judgement on the merits that Smith and Miller were never permit-

ted to argue. That is, is there sufficient evidence in the record from

which a jury could conclude that Smith and Miller actually encouraged

Wright's misconduct? Smith and Miller, like Judge Stapleton in dissent,

strongly believe there is not sufficient evidence to make such a finding,

and would have liked the opportunity to present argument on that issue

before the Court of Appeals majority issued its ruling sua sponte.

Qualified immunity is “an entitlement not to stand trial or face the other

burdens of litigation, conditioned on the resolution of the essentially

legal question of whether the conduct of which the plaintiff complains

violated clearly established law.” Mitchell ». Forsyth, 472 U.S. 511, 526

(1985).

1. The Court of Appeals’ opinion conflicts with

Supreme Court precedent

In DeShaney, this Court held that the State is

under no obligation to protect a person from harm unless

the State has so deprived that person of his or her liberty

that he or she is unable to protect him or herself. The

Court of Appeals on remand in this case claims that its

earlier discussion of “functional custody” is “[a}rguably .

. Not inconsistent with the DeShaney opinion.” Slip

opinion, p. 7, App. at p. 9. The Court implies that Penn-

sylvania’s mandatory school attendance law* constitutes a

sufficient restraint on liberty to create a duty to protect

under the DeShaney rationale.

In DeShaney, the Supreme Court held that

when the State takes a person into its

custody and holds him there against his will,

the Constitution imposes upon it a cor-

responding duty to assume some responsibil-

ity for his safety and general well-being.

[citation and footnote omitted] The ration-

ale for this principle is simple enough: when

the State by affirmative exercise of its power

so restrains an individual's liberty that it

renders him unable to care for himself, and

at the same time fails to provide for his

basic human needs—e.g food, clothing,

4 24 PaCS.A. $13-1317

Ah

shelter, medical care, and reasonable

safety—it transgresses the substantive limits

on state action set by the Eighth Amend-

ment and the Due Process Clause. [citations

omitted] The affirmative duty to protect arises

not from the State’s knowledge of the indivi-

dual’s predicament or from its expressions of

intent to help him, but from the limitation

which it has imposed on his freedom to act

on his own behalf. {citation omitted] In the

substantive due process analysis, it is the

State's affirmative act of restraining the

individual's freedom to act on his own be-

half—through incarceration, institutionaliza-

tion, or other similar restraint of personal

liberty—which is the “deprivation of liberty”

triggering the protections of the Due Pro-

cess Clause, not its failure to act to protect

his liberty interests against harms inflicted

by other means.

109 S.Ct. at 1005-06 [emphasis supplied].

This language makes it absolutely clear that, in this

case, neither the school district nor its administrators

violated any substantive Constitutional right of Stoneking.

Stoncking alleges no facts from which one can reasonably

find such a complete deprivation of liberty. Simply put,

mandatory public school attendance docs not impose

affirmative restraints on liberty from which a duty of

protection can arise.

it

It cannot be said that school attendance is a “re-

straint of liberty” similar to “incarceration” or “institution-

alization,” contexts where the Courts recognize a duty to

protect. Indeed, this Court long ago recognized the signi-

ficant differences between the school setting and a prison.

In Ingraham v. Wright, 430 U.S. 651 (1977), the Court

held

[T]he public school remains an open institu-

tion. Except perhaps when very young, the

child is not physically restrained from leav-

ing school during school hours; and at the

end of the school day, the child is invariably

free to return home. Even while at school,

the child brings with him the support of

family and friends and is rarely apart from

teachers and other pupils who may witness _

and protest any instances of mistreatment.

The cpenness of the public school and its

supervision by the community afford signifi-

cant safeguards against the kinds of abuses

from which the Eighth Amendment protects

the prisoner.

Id., 430 U.S. at 670, 97 S.Ct. at 1412.

2.

The Court of Appeals opinion conflicts with

rulings in other circuits

The opinion of the Court below also implies openly

that school children, when attending school, are analogous

-16-

to children placed in foster homes who are mistreated by

foster parents. Slip opinion at p.8., App. at p. 10. Since

the DeShaney opinion expressly left open the question of

whether liability would exist in that circumstance, see 109

S.Ct. at 1006, n. 9, the clear implication is that the Court

would find that a duty to protect those foster children

exists, and by analogy a duty to protect school children

exists. This position, however, has already been rejected

by two different Circuits. See Milburn v. Anne Arundel

County Department of Social Services, 871 F.2d 474 (4th

Cir. 1989), cert. denied 1989 U.S. LEXIS 4189 (1989) and

Doe v. Bobbitt, 881 F.2d 510 (7th Cir. 1989).

3. The Count of Appeals opinion conflicts with

other rulings of that Court

The sub silentio holding by the Court of Appeals

that school officials have a duty under the substantive

component of the due process clause to protect school

children is also in conflict with the holding of another

panel of that Court. In Philadelphia Police and Fire As-

sociation for Handicapped Children, inc., et al v. City of

Philadelphia, 874 F.2d 156 (3d Cir. 1989), a unanimous

panel of the Court of Appeals held that no such substan-

live right exists in a closely analogous situation.

In that case, a class comprised of recipients of

mental retardation services filed suit to prevent the Com-

monwealth of Pennsylvania and the City of Philadelphia

from reducing the level of services available to them,

claiming a violation of equal protection and a substantive

.|7-

due process right to services. The Court analyzed the

substantive due process claim in light of DeShaney, and

concluded that no such rights exist. The Court noted that-

the class contends that because Pennsylva-

nia’s statutory scheme requires the mentally

retarded to enter the system through the

BSU’s, where a plan fer their care, includ-

ing a placemeni determination, is made, the

state has custody over those mentally re-

tarded assigned to live at home. Their

reliance on state-provided services, they

claim, makes them absolutely dependent

upon the state. Similarly, it is asserted that

cessation of services will end in literal incar-

ceration. [footnote omitted] DeShaney,

however, forecloses the class’ constructive

custody argument because it makes clear

that a “state’s affirmative act of restraining

the individual’s freedom to act on his own

behalf—through incarceration, institutionali-

zation, or other similar restraint on person-

- al liberty” is a prerequisite to the state’s

obligation to provide care. DeShaney, 57

U.S.L.W. at 4221... . Under [DeShaney] it

is impossible to find an affirmative state

duty to protect the mentally retarded living

at home.

The Court went on to note that the fact that the

class members “participated in state-sponsored day pro-

o1 8.

grams” was not sufficient to satisfy DeShaney's custody

requirement. The Court held that “[i]n light of DeShaney,

we do not believe that such intermittent custody gives rise

to an affirmative duty on the state’s part.”

The parallels to the case at bar are obvious. In the

Philadelphia Police and Fire Association case, the state

mandated the delivery of services through the base service

unit; this is analogous to the mandatory school require-

ment law relied upon by the Stoneking Court. In the

Philadelphia Police and Fire Association case attendance at

state-sponsored “day programs,” presumably required by

the BSU, was seen as only “intermittent custody” which

did not give rise to a duty to protect; but the Court of

Appeals in Stoneking would apparently find that just such

intermittent contact would give rise to such a duty. The

Court’s opinion in Stoneking is in clear conflict with the

unanimous opinion of the panel in Philadelphia Police and

Fire Association.

ie Smith, Miller and Shuey Are Entitled to Qualified

Immunity

This appeal, of course, arises in the context of the

doctrine of qualified immunity.

The application of qualified immunity is an object-

ive test under Anderson v. Creighton, 483 U.S. 635 (1987)

and Harlow v. Fitzgerald, 457 U.S. 800 (1982). As Judge

Stapleton correctly phrased the inquiry in his dissenting

opinion below, would reasonable school officials with the

-19-

knowledge allegedly possessed by Smith and Miller have

realized in 1980 to 1983 that they were violating a well-

established duty owed to Stoneking under federal law?

To begin with, the Court of Appeals’ own observa-

tion of “the uncertainty of the law in this respect”, Slip

opinion at 8, App. p. 10, proves beyond cavil that there

was not, and is not even today, any “well-established

duty” or “clearly established law” in this area. In the

absence of a violation of clearly established law, an in-

dividual defendant is entitled to qualified immunity from

suit. Mitchell v. Forsyth, 472 U.S. at 526. On this basis

alone, the Court should have recognized that Smith,

Miller and Shuey are immune from Stoncking’s claims,

and dismissed the case as to the individual defendants.

But the Court of Appeals did not end its inquiry

there. Instead, it went on to hold that there was another

“clearly established” duty that Smith and Miller may have

violated; that is, a duty not te encourage sexual abuse of

students by teachers.

To pose the proper question in terms of qualified

immunity, should Smith, Miller and Shuey have realized in

1980-83 that their response to the allegations of Wright’s

sexual assault of Judy Grove in 1979 was tantamount to

encouragement for Wright to assault other female stu-

dents, and thus violated clearly-established law prohibiting

-20-

them from giving such encouragement??

- It is conceded that Smith and Miller, as reasonable

school officials, should have known in that time period

that they had a duty not to affirmatively and actively

encourage sexual abuse of students. But could they have

known that their conduct gave Wright any encourage-

ment? The only actions of theirs that could possibly have

been construed by Wright as encouragement was their

handling of the Judy Grove allegations in 1979.° Let us

examine that situation, objectively, as Harlow requires.

What situation did Smith and Miller find them-

selves in? It is undisputed that Judy Grove had made

allegations that Wright had attacked her in his home the

previous summer. It is also undisputed that Wright denied

the attack. Smith and Miller had to make a choice of

whether or not to believe Wright’s denial of the incident.

They accepted Wright’s denial,’ and yet took the further

Smith, Miller and Shuey agree with Judge Stapleton’s resolution of that

question; the existing record in Stoneking is inadequate “to permit a

fact finder to conclude that Wright understood the administration to

favor his misdeeds.”

The Richard DeMarte incidents, discussed in the panel opinion at pp.

16-18, App. pp.18-20, have no bearing whatsoever on this case, since

there is absolutely no evidence or allegation in this voluminous record

that Wright was aware of them; thus he could not have drawn any

encouragement from those alleged incidents.

It is ironic to note that even if Wright was truthful in denying the assault

on Sowers, Smith’s and Miller’s determination would still be available as

a “weapon” for Wright to use in any subsequent nonconsensual en-

2]

prudent step of warning him never to be alone with fe-

male students again.

The record in the Court below is absolutely barren

of any further alleged incidents involving Wright between

1980 and 1983 while Stoneking was a student. From the

point of view of Smith and Miller, they had dealt properly

with a difficult situation. If they reasonably believed that

Wright had not committed the alleged assault, they cannot

be held to “knowledge” that they encouraged further

assaults! Even if a jury were later to conclude that Wright

did in fact assault Judy Grove in 1979, it cannot fault

Smith and Miller for having reached the opposite conclu-

sion when they had both Wright and Grove in front of

them. This Court has previously established that it is not

the province of the judiciary, or jury, to second guess the

entirely reasonable choices made by professionals in the

course of their duties, see Youngberg v. Romeo, 457 U.S.

307 (1982); likewise, the judgment of Smith and Miller

should not be subject to a second guess by the jury.

Smith, Miller and Shuey are entitled to qualified

immunity and to be dismissed from the case entirely; this

Court should grant certiorari and dismiss those administra-

tors.

counters with female students. In that situation, would Smith’s and

Miller's accurate assessment of the situation be the “moving force”

behind the alleged assaults on Stoneking? Certainly not.

Eom

D. The Court of Appeals Has Improperly Applied the

Principles of Municipal Liability Under City of Can-

ton to Individual Defendants

In its Opinion, the Court of Appeals relied on this

Court’s decision last term in City of Canton v. Harris, 109

S.Ct. 1197 (1989), in which this Court established that,

before a municipal body can be held liable for damages

under § 1983 on a theory that municipal officers were

inadequately trained, the Plaintiff must show that such a

failure to train amounts to deliberate indifference to the

rights of persons with whom the police come in contact.

At page 10 of its slip opinion, App. at p. 12, the

Court of Appeals suggests that the City of Canton case

provides an independent basis for liability of appellants

Smith and Miller. The Court held that the defendants,

“with deliberate indifference to the consequences, estab-

lished and maintained a policy, practice or custom which

directly caused [Stoneking] constitutional harm.’® It then

discussed evidence of how defendants Smith and Miller

handied various situations they were faced with. Finally, in

Smith and Miller respectfully submit that, even on the “evidence” cited

by the Court of Appeals, it is impossible to find that they “directly

caused” any constitutional harm. The band director Edward Wright

caused the direct harm to Stoneking: the most the Court of Appeals

could say about Smith and Miller’s conduct was that they somehow

condoned Wright’s behavior by discouraging student complaints. See

discussion at page 26, supra. This is hardly the kind of “direct” cause

of harm required by Rizzo, infra.

et.

its Order disposing of the appeal, the Court dismissed the

school superintendent, Frederick Shuey, in his individual

capacity only,’ leaving the principal Frederick Smith and

the assistant principat Richard Miller as defendants in

their individual capacities. j

It appears from the Court’s opinion that the con-

duct of those two school administrators, in the perfor-

mance of their official duties for the school district, ex-

poses them to personal liability in their individual capaci-

ties. Yet the Court give no explanation of any sort as to

the source of this personal liability.

Since City of Canton deals exclusively with munici-

pal liability, its application to a case involving (at this

stage) only municipal officials is tenuous at best; at worst,

it is an erosion of the principle enunciated in DeShaney.

In the City of Canton case, Plaintiffs alleged that

the City of Canton failed to adequately train its police

officers to determine when persons taken into their custo-

dy should receive medical attention. The Court held that

the City might be liable if the Plaintiff could establish that

in light of the duties assigned to specific

officers or employees the need for more or

The Court found no “affirmative acts by Shuey on which Stoneking can

base a claim of toleration, condonation or encouragement of sexual

harassment by teachers which occurred in one of the various schools

within his district”, and therefore no basis for liability in his individual

capacity. Slip Opinion at p. 24, App. at p. 26.

xe

a

different training is so obvious, and the

inadequacy so likely to result in the viola-

tion of constitutional rights, that the policy-

makers of the city can reasonably be said

to have been deliberately indifferent to the

need.

Id., 109 S.Ct. at 1205.

While it might be appropriate to impose liability on

the policy-making body itself (the City), the application of

this principle to the municipal officers who implement the

policies is far from clear. It may be that those officers

who can be said to create such policies of indifference

might be found liable themselves in their capacities as

policymakers (i.e. in their official capacities). But there is

no justification for holding those persons liable in their

individual or personal capacities.

In order to determine the capacity in which a

person may be found liable, it is necessary to examine the

capacity in which he acts when he does the things which

allegedly result in liability. If a public official in the perfor-

mance of his official duties acts in such a way as to di-

rectly violate the Constitutional rights of some person, it

may be that the public official can be held liable in his

official capacity. If the duty to act arises be virtue of

one’s official responsibilities, official capacity liability may

result.

Thus, school administrators may have a duty in

their official capacities not to encourage teachers to

-95-

~-

sexually abuse students. A breach of that duty may result

in official capacity liability. But the Court of Appeals heid

that Smith and Miller might be found liabile in their

individual capacities if a jury believes they breached that

official duty. Yet the Court does not suggest what the

source of their duty in their individual or personal capaci-

ties might be. Is the Court of Appeals saying that, above

and beyond their official duties as school administrators,

these men owed some personal duty to Stoneking? Is that

simply the “duty to protect” wearing a new disguise?

The most the Court of Appeals could say about

the allegations in this case is that “a jury could reasonably

conclude that . . . discouragement of complaints [by Smith

and Miller] amounted to a communication of condonation

of the teacher’s behavior,” Slip Opinion at p. 23, App. at

p. 25. While the Court believes that such a jury finding

would satisfy the “affirmative link” requirement of Rizzo

v. Goode, 423 U.S. 362 (1976), a closer look at Rizzo

reveals just the opposite.

In Rizzo, a group of citizens filed a class action

against the City of Philadelphia police force, seeking

injunctive relief under § 1983. The District Court found

that none of the respondents in that case had actually

participated in the deprivation of the rights of citizens, but

found a “pattern” of discouraging citizen complaints and

a tendency to “minimize the consequences of police mis-

conduct.” Jd., 423 U.S. at 368-69. Based upon those

findings, the District Court required the City to prepare

a set of guidelines to improve the handling of citizen

-26-

complaints, and entered those new guidelines as an Order

of Court. The United States Court of Appeals for the

Third Circuit affirmed.

This Court reversed that judgment on several

bases, including the lack of a justiciable case or controver-

sy and out of principles of federalism. The Court discussed

the merits of the § 1983 claim, however:

Respondents posit a constitutional “duty”

on the part of petitioners (and a corre-

sponding “right” of the citizens of Philadel-

phia) to “eliminate” future police miscon-

duct; a “default” of that affirmative duty

being shown by the statistical pattern, the

District Court is empowered to act in peti-

tioners’ stead and take whatever preventive

measures are necessary, within iis discre-

tion, to secure the “right” at issue. Such

reasoning, however, blurs accepted usages

and meanings in the English language in a

way which would be quite inconsistent with

the words Congress chose in § 1983. We

have never subscribed to these amorphous

propositions, and we decline to do so now.

Id., 423 U.S. at 376.

This case is no different than Rizzo. To paraphrase

this Court, Stoneking posits a Constitutional “duty” on

the part of Smith and Miller (and a corresponding right in

herself) to “eliminate” sexual abuse of students by teach-

BX

ers; a “default” of that affirmative duty under her formu-

lation should result in an award of damages under § 1983.

Her “evidence” in support of a default of that alleged

duty is nothing more than a claim that student complaints

(like the citizen complaints in Rizzo) were discouraged and

minimized. She does not allege that Smith or Miller com-

mitted any act which directly deprived her of rights (just

like the respondents in Rizzo).

If the facts in Rizzo were insufficient to warrant

injunctive relief under § 1983, the nearly analogous allega-

tions of this case should not be sufficient to warrant an

award of damages under § 1983.

The alternative rationale adopted by the Court of

Appeals is not sufficient to support a finding of personal

liability against Smith and Miller in their individual capaci-

ties; they should have been dismissed along with Shucy.

This Court should grant certiorari and declare that City of

Canton cannot be extended to create liability for munici-

pal officers in their individual capacities.

IX. CONCLUSION

WHEREFORE, Petitioners pray that a Writ of

Certiorari issue from this Honorable Court to review the

judgment of the United States Court of Appeals for the

Third Circuit in this action. In the event that the Petition

is granted, Petitioners pray that the judgment of the

Court below be reversed, that the cause be remanded,

and that the Court below be directed to dismiss Petition-

ers as defendants, as ats ™ in the noes pal

1

wy » a C ih

Kenneth D. ney Esq.

MURPHY, TAYLOR, TROUT &

CHESTEK, PC.

518 State Street

Erie, PA 16501

(S14) 459-0234

ee tl

\ Gres ). |

James D. McDonald, Jr., Esq. "|

THE-MCDONALD GROUP J

456 West 6th Street

Erie, PA 16507

(814) 456-5318

Aitorneys for Petitioners

-29.

: D ay

ira a oe ae

X. CERTIFICATION OF MEMBERSIIIP

It is hereby certified that both Attorneys for the

Petitioners are members of the Bar of the Supreme Court

of the United States.

aA y Ll

Kenneth D. Chestek, Esq.

-3}-

i

od

—

;

q

—_—

—

-

+

-

4

i

I

—

XI. PROOF OF SERVICE

I hereby certify that three copies of the within

Petition for Writ of Certiorari were served on Deborah

W. Babcox, Esq., 222 West Washington Street, Bradford,

PA 16701 and Wallace J. Knox and Sean J. McLaughlin,

Esq., 120 West 10th Street, Erie, PA 16501, this ! >day of

November, 1989.

OO)

Kenai y Aijs-

Kenneth D. Chestek, Esq.