Petition for Writ of Certiorari — Smith v. Sowers

No. FILED

IN THE SUPREME COURT NOV 14 189

OF THE UNITED STATES

October Term, 1989

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

JUDY GROVE SOWERS

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 W. Harvey

Israel and Wood, P.C.

Suite 501 Grant Building

Pittsburgh, Pa. 15219

(412) 391-1114

Attorneys for Petitioners

I. QUESTIONS PRESENTED

A. Are school students “at liberty” during summer

vacation so that, under the rationale of this Court in

DeShaney v. Winnebago County there exists no duty under

the Fourteenth Amendment for school administrators to

protect them from criminal assaults?

B. Was there clearly established law in 1979 that

school 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 to “deliberate indifference” to the

rights of citizens be extended to create a new theory of

personal liability for municipal officials?

il. TABLE OF CONTENTS

Meh jy oe | so) | 1 » i

Ser Fe lee . 5 1.) Srrerererererarar ili

er Fe ty) ete |. See v

SOURED GEOUD nc cc ecescccccesecees l

A. Procedural History of This Case ..... l

B. Related Proceeding .............. 2

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

VI. CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED ...... 7

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

Pe WUE MNS oc ccc ccc tae nccees 7

DTD ca Acces cnecccsccesese 8

i Sears) 3.) le Of @ \.. Pr rerre 9

re Cre 1]

A. Summary of Argument ........... 1]

B. The Court of Appeals Failed to

Resolve the Question Posed by This

OS Pre ee 12

l. The Court of Appeals’ opinion

contlicts with Supreme Court

precedent .......e0ee0085 14

i

The Court of Appeals opinion

conflicts with rulings in other

eee Teey TT Tee eee 17

3. The Court of Appeals opinion

conflicts with other rulings of

thet Comit cn ccnccsccccces 18

os Smith, Miller and Shuey Are Entitled

to Qualified Immunity ............ 20

D. The Court of Appeals Has Improper-

ly Applied the Principles of Municipal

Liability Under City of Canton to

Individual Defendants ............ 22

Mae ati 5 Ee aA ee eee ee ee 29

X. CERTIFICATION OF MEMBERSHIP ....... 3]

-IV-

ill. TABLE OF AUTHORITIES

Constitutional Provisions

United States Constitution, Amendment 14, Section 1. 7

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ....... 20

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

22-24, 28

DeShaney v. Winnebago County Department of Social Ser-

vices, 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) ....... 18

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ......... 20

Ingraham v. Wright, 430 U.S. 651 (1977) 2.2.2.2... 16

Milburn -v. Anne Arundel County Department of Social

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

US. LEXES 4189 (1909) 2... oc whlew a Se ec eke 17

Mitchell v. Forsyth, 472 U.S. 511 (1985) ...... 5, 14, 21

Philadelphia Police and Fire Association for Handicapped

Children, Inc., et al v. City of Philadelphia, 874 F.2d 156 (3d

CAE TROD <e'6 a's 0.c's st Rs aA Ree eee 18-20, 26

Rizzo v. Goode, 423 U.S. 362 (1976) .... 11, 23, 26, 27

Stoneking v. Bradford Area School District, et al., 856 F.2d

594 (3d Cir. 1988), cert. granted, vacated and remanded sur

nom. Smith v. Stoneking 109 S.Ct. 1333 (1989); reaffirmed

on remand 882 F.2d 720 (1989) .. 6.6... 6 ee ees 2, 10

Statutes and Rules

24 Pa.CS.A. § US1ST7 wc ccc cnnnnnvesnncees 8, 14

MBE USC, & 1206 cc ccc cccccccncccccescesesen 5

y Zk tom OB). PRPeWEETEREEET? rei 5

28 U.S.C. $1983 . ccc ccccncscese HA SM GS Oe

-Vi-

IV. OPINIONS BELOW

A, Procedural History of This Case

The Judgment Order of the United States Court -

ot Appeals for the Third Circuit on remand (the Order

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

page 1. _

The procedural history of this appeal is as follows:

Judy Grove Sowers [hereinafter “Sowers”], sought da-

mages under § 1983 after she claimed that a Bradford

Area High School teacher sexually attacked her while she

was visiting him in his home during summer vacation. On

August 29, 1988, the United States District Court for the

Western District of Pennsylvania, at Civil Action No. 88-

57 Erie in that Court, denied a Motion to Dismiss sub-

mitted by all Defendants; its Opinion is reported at 694

F.Supp. 125 (W.D.Pa. 1988), and is printed in the Appen-

dix hereto at p. 39. 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 to Dismiss on the basis of quali-

fied immunity. The Court of Appeals affirmed the District

Court by Judgment Order dated January 31, 1989, at No.

88-3640 in that Court. That Order is printed in the Appen-

dix hereto at p. 81.

Smith, Miller and Shuey then filed a timely Peti-

tion for Writ of Certiorari with this Honorable Court. This

-|-

Court granted the petition on April 3, 1989, summarily

vacated the Order of the Court of Appeals, and 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. 87 and is

reported at 109 S.Ct. 1634.

On remand, the Court of Appeals again affirmed

the District Court by Judgment Order dated September 28,

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

beginning at page 1. It is this Order which is the subject of

the current petition.

B. Related Proceeding

This case is related to the case of Stoneking v.

Bradford Area School District, et al., 856 F.2d 594 (3d Cir.

1988), cert. granted, vacated and remanded sur nom. Smith

v. Stoneking 109 S.Ct. 1333 (1989); reaffirmed on remand

882 F.2d 720 (1989). A second petition for writ of certiora-

ri in that case is being filed simultancously with this peti-

uion,

In Stoneking, another Bradford Area High School

student claimed that she was sexually abused by the same

_ teacher Sowers has accused of abusing her. Stoncking filed

suit secking damages under § 1983, on a legal theory very

similar to that advanced by Sowers.

On August 28, 1987, the United States District

Court for the Western District of Pennsylvania, at Civil

tv

Action No, 87-63 E in that Court, denied a Motion for

Summary Judgment submitted by all Defendants; its Opini-

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

printed in the Appendix hereto at p. 91. Smith, Miller and

Shuey 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. 135.

Smith, Miller and Shuey then filed a timely Peti-

tion for Writ of Certiorari with this Honorable Court. This

Court granted the petition on March 6, 1989, summarily

vacated the Order of the Court of Appeals, and 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. 165 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. Appendix, p. 169 [hereinafter “Stoneking IT”). A

Petition for a Writ of Certiorari has been prepared in that

case and is intended to be filed simultaneously with this

Petition.

-.

V. STATEMENT OF JURISDICTION

Jurisdiction of this Honorable Court is invoked

pursuant to 28 U.S.C. § 1254.

The Judgment Order of the United States Court

of Appeals for the Third Circuit was entered on September

28, 1989. App., page 1.

Jurisdiction for the appeal to the United States

Court of Appeals for 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

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

a denial 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 Plain-

tiff based upon 28 U.S.C. § 1983.

ee ee eA oe rs

p \

————

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 sta-

tute, ordinance, regulation, custom, or usage,

of any State or Territory or the District of

Columbia, subjects, or causes to be sub-

jected, any citizen of the United States or

other person within the jurisdiction 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 regress. For the pur-

poses of this section, any Act of Congress

applicable exclusively to the District of Co-

lumbia 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.

VIL. STATEMENT OF CASE

The facts material to the consideration of the ques-

tions presented are as follows. The Bradford Area School

District (the “School District’), which is not a party to this

appeal, is a local governmental agency organized pursuant

to the laws of the Commonwealth of Pennsylvania. Dur-

ing the relevant period of time, Petitioner Smith was the

principal of the Bradford Area High School; Petitioner

Miller was the assistant principal; and Petitioner Shuey was

the superintendent of the School District.

Respondent Judy Grove Sowers (“Sowers”) at-

tended the Bradford Area High School, graduating in 1980.

The record before the District Court and the Court

and the Court below reveals the following:

Sowers contends in her Complaint that in June of

1979 the former band director of the Bradford Area High

School, Edward Wright, sexually assaulted her. Com-

plaint, par. 12, App. p. 11. Although she omits these

material facts from her Complaint, she has testified in a

deposition taken in a related case that, during her summer

school vacation and after becoming intoxicated at her

sister's wedding reception, she visited Wright's private

home, where this assault allegedly occurred. App., pp. 34

-9-

et seq..' This is the only incident of sexual assault of which

Sowers complains. No incident occurred while Sowers

attended school or a school sponsored activity.

This deposition was originally a part of the record in the related case

of Stoneking \. Bradford Area School District, et al., 856 F.2d 594 (3d

Cir. 1988), cert. granted, vacated and remanded sur nom. Smith \.

Stoneking 109 S.Ct. 1333 (1989); reaffirmed on remand 882 F.2d 720

(1989). It was also submitted to and considered by the District Court in

this case, which referred to the deposition in its recitation of facts.

District Court Opinion, App. at 44. Smith, Miller and Shuey have

reproduced the relevant pages of this deposition in the interest of

judicial economy since, although Sowers’ own Complaint does not recite

these facts, her counsel have not attempted to deny this sworn testi-

mony in the prior cases.

-10-

DL ———————

VILL. ARGUMENT

A, Summary of Argument

The Court of Appeals in Stoneking IJ 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. By adopting the

Stoneking IT rationale in this case, the practical effect of

the Judgment Order is to leave these school officials ex-

posed 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 in Stoneking

I], however, that there was “uncertainty” in the law re-

garding 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 in Stoneking IJ, and adopted by the panel in this

case, is also insufficient. The Court extended the rationale

of this Court’s holding last Term in City of Canton v.

Haris, 109 S.Ct. 1197 (1989), to create a new theory of

individual capacity liability. 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).

2.

EE

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 re-

viewed 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”. But the

Court of Appeals chose to avoid this question, choosing

instead to simply adopt the rationale of the panel in Stone-

king II, which had grounded its decision 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 as effective as an express holding that a duty to

A.

protect exists under the Fourteenth Amendment.

The Court of Appeals in Stoneking I] did discuss

DeShaney, strongly suggesting that it would have ruled that

its prior ruling was “not inconsistent with the DeShaney

opinion.” Slip Opinion at p. 7, App. p. 177. But the Court

refused to make an explicit holding on this basis, “because

the uncertainty 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

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

Shuey are enutled to qualified immunity, because liability cannot attach

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

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

at p. 20, infra.

The Court of Appeals in Stoneking I] went on to, in effect, decide a

motion for summary judgement on the merits that Smith and Miller

were never permitted to argue. That is, is there sufficient evidence in the

record from whick 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.

-13-

htt ictal

qualified immunity requires this.*

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 Stoneking I/ claimed that its earlier

discussion of “functional custody” is “[a}rguably . . . not

inconsistent with the DeShaney opinion.” Slip opinion, p. 7,

App. at 177. The Court implies that Pennsylvania’s man-

datory 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 cus-

tody 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 gencral well-being.

Qualified immunity ts “an entitlement not to stand tnal or face the other

burdens of litigation, conditioned on the resolution of the essentially

legal question of whether the conduct of which the plainuff complains

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

(1985).

4

24 Pa.CS.A. §$13-1317

xy™

[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,

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 behailf. [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

-15-

case, neither the school district nor its administrators

violated any substantive Constitutional right of Sowers.

Sowers alleges no facts from which one can reasonably

find such a complete deprivation of liberty. Simply put,

mandatory public school attendance does not impose af-

firmative restraints on liberty from which a duty of pro-

tection can arise.

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

ree 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 openness of the public school and its

supervision by the community afford signifi-

cant safeguards against the kinds of abuses

trom which the Eighth Amendment protects

the prisoner.

-16-

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

The panel in this ¢ase compounds the error of the

Stoneking IT panel because Judy Grove (now Sowers) was

not even in attendance at school at the time of the only

alleged assault against her. In her own Complaint she

claims that she was attacked in Wright’s home during

summer vacation, She was not compelled by any state law

or directive of the school officials to go to his home that

afternoon, Without any doubt whatsoever, she was a per-

son “at liberty” to whom, under this Court’s holding in

DeShaney, these school officials owed no duty of protect-

ion. The Court of Appeals’ decision to the contrary con-

flicts directly with DeShaney.

2. The Court of Appeals opinion conflicts with

rulings in other circuits

The opinion of the Court below in Stoneking IT also

implies openly that school children, when attending school,

are analogous to children placed in foster homes who are

mistreated by foster parents. Slip opinion at p.8., App. at

p. 178. Since the DeShaney opinion expressly left open the

question of whether liability would exist in that circum-

stance, see 109 S.Ct. at 1006, n. 9, the clear implication ts

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 \.

Anne Arundel County Department of Social Services, 871

F.2d 474 (4th Cir. 1989), cert. denied 1989 U.S. LEXIS

.|7-

4189 (1989) and Doe v. Bobbitt, 881 F.2d 510 (7th Cir.

1989).

3. The Court of Appeals opinion conflicts with

other rulings of that Court a

The sub silentio holding by the Court of Appeals in

Stoneking II 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 ano-

ther panel of that Court. In Philadelphia Police and Fire

Association 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-

tive 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

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 for their care, includ-

ing a placement determination, is made, the

State has custody over those mentally re-

tarded assigned to live at home. Their reli-

-18-

ance 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 incarceration.

[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-

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 IT Court. In the

Philadelphia Police and Fire Association case attendance at

-19-

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 IJ would apparently find that just

such intermittent contact would give rise to such a duty.

The Court’s opinion in Stoneking I] is in clear conflict with

the unanimous opinion of the panel in Philadelphia Police

and Fire Association.

ae 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 vy. Fitzgerald, 457 U.S. 800 (1982). As Judge

Stapleton correctly phrased the inquiry in his dissenting

opinion below, would reasonable school officials with the

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?

+ —fo begin with, the Court of Appeals’ own observa-

tion in Stoneking IT of “the uncertainty of the law in this

respect”, slip opinion at 8, App. p. 178, proves beyond cavil

that there was not, and is not even today, any “well-estab-

lished 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 Sowers’ claims, and dismissed

the case as to the individual defendants.

But the Court of Appeals in Stoneking I] 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 to 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

1979 that anything they had done was tantamount to

encouragement for Wright to assault female students, and

thus violated clearly-established law prohibiting 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 encouragement? In Sione-

king IT, 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. But Judy

Grove Sowers cannot claim that events subsequent to the

¢ , ' :

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

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

fact finder to conclude that Wright understood the administration to

favor his misdeeds.”

21

alleged assault on her gave Wright encouragement to

commit the assault. There is therefore no evidence of any

sort that anything Smith, Miller or Shuey did could have

given Wright any encouragement to commit the alleged

assault on Judy Grove.’

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.

D. The Court of Appeals Has Improperly Applied the

Principles of Municipal Liability Under City of Can-

ton to Individual Defendants

In its Opinion in Stoneking I7, the Court of Appeals

relied on this Court’s decision last term in City of Canton

v. Hams, 109 S.Ct. 1197 (1989), in which this Court estab-

lished 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. 180, the

. The Richard DeMarte incidents, discussed in the Stoneking II panel

opinion at pp. 16-18, App. at pp. 186-188, 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.

Court of Appeals in Stoneking IJ argues 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 conse-

quences, established and maintained a policy, practice or

custom which directly caused [Stoneking] constitutional

harm.”® It then discussed evidence of how defendants

Smith and Miller handled various situations they were

faced with. Finally, in its Order disposing of that appeal,

the Court dismissed the school superintendent, Frederick

Shuey, in his individual capacity only,’ leaving the principal

Frederick Smith and the assistant principal Richard Miller

as defendants in their individual capacities.'°

It appears from the Court’s opinion in Stoneking II

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

by the Court of Appeals in Stoneking IT, 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 com-

plaints. See discussion at page 25, supra. This is hardly the kind of

“direct” cause of harm required by Rizzo, infra.

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. 194.

Curiously, the panel in this case did not reverse the district court with

respect to Shuey, as the Stoneking I] panel had done. Thus, Shuey faces

the anomoly that, in this case where there is even less of a basis for

liability, he remains exposed to liability in his individual capacity as well.

«2 >

that the conduct of those two school administrators, in the

performance of their official duties for the school district,

exposes 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

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

eA.

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 per-

sonal capacities.

In order to determine the capacity in which a per-

son 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 sex-

ually abuse students. A breach of that duty may result in

official capacity liability. But the Court of Appeals in

Stoneking IT held 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 per-

sonal capacities might be. Is the Court of Appeals saying

that, above and beyond their official duties as school ad-

ministrators, these men owed some personal duty to Stone-

king? Is that simply the “duty to protect” wearing a new

disguise?

The most the Court of Appeals could say about the

allegations in Stoneking II 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. ???, App.

??2. 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 in-

junctive relief under § 1983. The District Court found that

none of the respondents in that case had actually parti-

cipated 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.” /d., 423 U.S. at 368-69. Based upon those find-

ings, the District Court required the City to prepare a set

of guidelines to improve the handling of citizen complaints,

and entered those new guidelines as an Order of Court.

The United States Court of Appeals for the Third Circuit

aftirmed.

This Court reversed that judgment on several bases,

including the lack of a justiciable case or controversy 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-

-26-

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 its 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 US. at 376.

This case is no different than Rizzo. To paraphrase

this Court, Sowers posits a Constitutional “duty” on the

part of Smith, Miller and Shuey (and a corresponding right

in herself) to “eliminate” sexual abuse of students by

teachers; a “default” of that affirmative duty under her

formulation should result in an award of damages under §

1983. Her “evidence” in support of a default of that al-

leged duty is nothing more than a claim that student com-

plaints (like the citizen complaints in Rizzo) were dis-

couraged and minimized. She does not allege that Smith,

Miller or Shuey committed 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 identical facts of

yy

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, Miller and Shuey in their individual

capacities; they all should have been dismissed. This Court

should grant certiorari and declare that City of Canton

cannot be extended to create liability for municipal officers

in their individual capacities.

-28-

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 Petitioners as

defendants, as prayed for in the Petition. |

Kenneth D. Chestek, Esq.

MURPHY, TAYLOR, TROUT &

CHESTEK, PC.

518 State Street

Erie, PA 16501

(814) 459-0234

fom vv.

ames W. Harvey, Esq.

ISRAEL AND WOOD, PC.

Suite 501 Grant Building

Pittsburgh, Pa. 15219

(412) 391-1114

Attorney for Petitioners

-29-

X. CERTIFICATION OF MEMBERSHIP

It is hereby certified that both of the Attorneys for

the Petitioners are members of the Bar of the Supreme

Court of the United States.

Meh 9 thd

Kenneth D. Chestek, Esq.

-3]-

XI. PROOF OF SERVICE

I hereby certify that three copies of the within Peti-

tion for Writ of Certiorari were served on Wallace J. Knox

and Sean J. McLaughlin, Esq., 120 West 10th Street, Erie,

PA 16501, this /# day of November, 1989.

/

( ¥ ) 7 Pi ¢) Ct) / a

rmwny 4 P4 : wf)

Kenneth D. Chestek, Esq.

a$$