Opposition Brief — Yontz v. Adams

MAY 17 1996

No. 95-1603 a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1995

RICHARD YONTZ,

Petitioner,

Vv.

AMY D. ADAMS, et al.,

Respondents.

On Petirion For A Warr Or Crertiorari

To Tue Unrrep States Court Or Appea.s

For Tue Sixtn Crrcurr

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STANLEY M. CHESLEY

CouNSEL OF RECORD

Pau. M. DeMarco

Walrte, SCHNEIDER, BAYLESS

& Cuestey Co., L.P.A.

1513 Centra Trust TOWER

Cincinnati, Outro 45202

(513) 621-0267

ATTORNEYS FOR RESPONDENTS

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

~

———— —" 7 . -

LDS AIOE Et peri ee

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-

QUESTION PRESENTED

Whether, in this action brought under 42 U.S.C. § 1983,

the Sixth Circuit was correct in concluding, based on

decisions of its own that were rendered before or during

the relevant time frame and based on the facts as

assumed by the district court, that the legal norms

petitioner and his subordinate are alleged to have

violated were clearly established at the time of the

challenged actions and that, therefore, petitioner is not

entitled to qualified immunity.

TABLE OF CONTENTS

QUESTION PRESENTED ..............0c0ee eee i

TABLE OF AUTHORITIES ............0.00000. iv

STATEMENT OF THE CASE.............0.00055 1

REASONS WHY THE PETITION

SHOULD BE, LHRINMBAP ooo cee cencesnss 4

I. THE SIXTH CIRCUIT PROPERLY

SUSTAINED THE DISTRICT COURT'S

CONCLUSION THAT KAECH'S

CONDUCT VIOLATED PLAINTIFFS'

CONSTITUTIONAL RIGHTS UNDER

"CLEARLY ESTABLISHED LAW," AS

VIEWED DURING YONTZ'S TENURE AS

PRINGCAP ARS s6ascseguw kaw s eet eues eeeas 6

II. THE SIXTH CIRCUIT

CORRECTLY CONCLUDED THAT THE

UNLAWFULNESS OF YONTZ'S

SUPERVISION OF KAECH, AND HENCE

HIS LIABILITY FOR HER CONDUCT,

WOULD HAVE BEEN APPARENT TO A

REASONABLE SCHOOL OFFICIAL IN

YONTZ'S POSITION BASED ON

RELEVANT CASES THAT WERE

DECIDED BEFORE OR WITHIN THE

19GGE41 “TEMEE BURP 6 cn cies neck esas’ 10

CONGCAASSIUAD 6 oc cvs usu eveeweteche se nAaeha ne 15

il

APPENDIX

OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH

CIRCUIT

NE URNS ia hc KW A We 06 <0 % ve la

EXPANDED OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO,

WESTERN DIVISION

EE a a ek a as ok Ws MWe sn 0c¥c 8s 9a

DECISION AND ENTRY OF THE

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF OHIO,

WESTERN DIVISION

SE a 46a

ill

TABLE OF AUTHORITIES

FEDERAL CASES

Anderson v. Creighton, 483 U.S. 635 (1987) 8, 14 fn1l, 15

Behrens v. Pelletier, 116 S.Ct. 834 (1996) ....... 12 fn9

City of Canton v. Harris, 489 U.S. 378 (1989) ........ 13

Cohen v. Beneficial Industrial Loan Corp.,

SOF Wide PUREED SR isc taeceweu ese 4 fn5

DeShaney v. Winnebago County Dept.

of Social Services, 489 U.S. 189 (1989) ......... 3

Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980) . 7, 11 fn8

Hays v. Jefferson County, 668 F.2d 869

(6th Cir.) cert. denied,

O90 US. BER TIGGS) oso vec cence. 10, 11 fn8

Johnson v. Jones, 115 S.Ct. 2151 (1995) ....... 4 fn5, 8

Leach v. Shelby County Sheriff,

891 F.2d 1241 (6th Cir. 1989) ............. 13

Mitchell v. Forsyth, 472 U.S. 511 (1985) ......... 1, 4, 8

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

Sims v. Waln, 388 F.Supp. 543 (S.D. Ohio 1974) . 6 fn6

Webb v. McCullough, 828 F.2d 1151

CR RUE Odd ae cas hoa es enke os 7, 11 fn7

STATUTES

CR iia Se: hain sces ieee tee passim

STATEMENT OF THE CASE

Petitioner/defendant Richard Yontz (hereinafter

"Yontz") has filed a Petition for a Writ of Certiorari

following his unsuccessful interlocutory appeal to the

Sixth Circuit pursuant to Mitchell v. Forsyth, 472 U.S. 511,

527 (1985). Yontz purported to appeal from two orders

issued by United States District Judge Walter Rice of the

Southern District of Ohio. These orders, attached hereto

as Appendices B and C,' disposed of the only two

qualified immunity arguments that Yontz raised before

the district court. Yontz raised a third qualified immunity

argument for the first time before the Sixth Circuit,

which the court of appeals rejected in its decision.

Appendix A.

Plaintiffs are eleven deaf or hearing-impaired

children, suing under 42 U.S.C. § 1983 through their

parents. The children were third, fourth, and fifth

graders when they were physically and emotionally

abused by Yontz's co-defendant, Beverly Kaech, plaintiffs’

instructor at Highlands Elementary School (HES) in

Springfield, Ohio.’ HES is located in the Springfield City

School District (SCSD). Yontz served as principal of HES

from 1982 to 1991, during which most of the alleged

abuse occurred.

On April 10, 1992, plaintiffs filed their complaint

' Due to Yontz's inaccurate reproduction of the decision of the

Sixth Circuit and of the two orders issued by the district court,

plaintiffs have reproduced these opinions as Appendices A, B, and C

for the convenience of the Court.

? Kaech did not take part in Yontz's appeal and has not filed any papers

with respect to the instant petition.

naming Kaech, SCSD, and Yontz as defendants. In their

§ 1983 claim against Yontz, plaintiffs asserted that Yontz

was under a duty to protect them from Kaech because

plaintiffs enjoyed a "special custodial relationship" with

Yontz. Plaintiffs further alleged that Yontz's indifference

to their allegations against Kaech resulted in violation of

their rights under the due process clause.

On May 3, 1993, SCSD and Yontz moved for

summary judgment based, in part, on qualified immunity.

Viewed in the light most favorable to plaintiffs, the record

in connection with defendants' motion documented

plaintiffs' allegations of years of Kaech abusing and

injuring the children, including slapping them across the

face; slamming their faces into their desks; throwing

books at them; angrily shoving a hearing aid into one

child's ear, causing the ear to bleed and ordering the

bleeding child to the principal's office; scratching

children almost routinely; intentionally tripping a

student, jabbing a student with a pencil; inflicting other

injuries on children, such as bruises, a bloody lip, and a

serious knee injury; yelling and hurling demeaning insults

at the children, often in regard to their disabilities; in

short, routinely engaging in the sort of physical and

mental abuse that, in the opinion of plaintiffs' expert, is

likely to have long-lasting adverse impact. See Appendices

B and C. Kaech denied these allegations. Plaintiffs also

maintained that they submitted several oral and written

complaints about Kaech's conduct to Yontz, but that

Yontz invested little time and effort in responding to

these complaints and, in the end, always believed Kaech's

denials. For his part, Yontz insisted he never saw Kaech

abuse plaintiffs, that he only received three complaints

about Kaech, and that he adequately investigated the

complaints.

raised in his motion for summary judgment. Yontz

argued that, under DeShaney v. Winnebago County Dept. of

Social Services, 489 U.S. 189 (1989), he had no duty to

protect plaintiffs from Kaech. The district court found in

favor of Yontz on that issue in the order attached as

Appendix B.> Nevertheless, the district court denied, in

part, Yontz's motion for summary judgment. In partially

denying summary judgment, the district court observed

that, while Yontz had no affirmative duty to protect

plaintiffs, Yontz could still be held liable for Kaech's

conduct because he served as Kaech's supervisor. App.

29a-30a. For this reason, the district court held that it

would be improper to grant Yontz full qualified

immunity. Id.

This observation by the district court highlighted

Yontz's failure to raise in a timely fashion what would

later become his second qualified immunity argument -

i.e., that Kaech's conduct did not violate plaintiffs' "clearly

established" constitutional rights. Yontz did not raise this

argument as a basis for qualified immunity until after the

district court had partially denied his motion for

summary judgment.

In the intervening time, on July 14, 1995, Yontz

filed his Notice of Appeal. Yontz first raised the issue

whether or not Kaech's conduct violated plaintiffs’ clearly

established rights when he asked the district court for a

stay pending his interlocutory appeal from the denial of

summary judgment. The district court resolved this issue

against Yontz in an opinion dated July 25, 1994, which is

> The DeShaney issue was therefore not addressed by the Sixth Circuit.

5

attached as Appendix C. App. 46a-60a.*

Yontz raised yet a third theory of qualified

immunity for the first time before the Sixth Circuit: he

claimed qualified immunity from plaintiffs' supervisory

liability claim. See App. 58a n. 9 (where the district court

indicated that Yontz had never raised this issue).”

On January 5, 1996, the Sixth Circuit issued an

unpublished decision rejecting all of Yontz's qualified

immunity arguments. Appendix A.

REASONS WHY THE PETITION

SHOULD BE DENIED

Pursuant to Rule 10 of the Rules of the Supreme

Court of the United States, review on a petition for a writ

* In this opinion, the district court expressed the opinion that the issue

should have been raised in a proper Rule 56 context. App. 49a. In the same

opinion, the district court certified Yontz’s interlocutory appeal as frivolous.

App. 59a. The Sixth Circuit reversed this finding. This issue is not before

the Court for proposed review.

> While Yontz attacked the merits of plaintiffs’ supervisory liability claim

in his motion for summary judgment, asking the district court to find there

was no genuine issue of material fact as to supervisory liability, he did not

actually claim qualified immunity from that cause of action until reaching

the Sixth Circuit. App. 58a. The fact that the Sixth Circuit was asked to

address an issue that Yontz had not raised before the district court as a

ground for qualified immunity frustrates the entire premise for qualified

immunity appeals under Mitchell v. Forsyth, as recently reiterated by this

Court in Johnson v. Jones, 115 S.Ct. 2151 (1995). In Johnson, this Court

indicated that Mitchell appeals should be limited to those that present neat,

conclusively determined abstract issues of law. Jd. at 2155, 2158, citing in

part Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). A

qualified immunity argument that was never presented to the district court

cannot be considered either neat or conclusively determined.

4

aerate asain aaiiieiieiines

of certiorari is not a matter of right, but of judicial

dcohion. No special or important reasons exist in this

case Warranting the granting of Yontz's Petition. Yontz

has nqt asserted that United States Courts of Appeals are

in cor@flict with one another on the issues proposed for

review, Rule 10(a). To the contrary, the qualified

immunity issues presented for review are, by their nature,

so peculiarly and exclusively dependent upon Sixth

Circuit precedents and, to a lesser extent, Southern

District of Ohio precedents that review by this Court

would not affect any other Circuit. Moreover, the Sixth

Circuit did not render a decision that conflicted with

applicable decisions of this Court. Jd. The Sixth Circuit's

decision involved straight-forward application of, first and

foremost, that court's own precedents related to (1) a

student's right to bodily security in school, and (2) a

supervisor's liability under § 1983 for the unconstitutional

acts of his subordinates. In short, Yontz's Petition is

predicated on his belief that the Sixth Circuit has

misapplied its own case law. As demonstrated below,

Yontz's belief is definitely not well-founded. In any event,

the objective of Yontz's Petition is far too narrow and the

potential salutary effects of review far too limited for this

Court to grant the Petition. Rule 10. Yontz's Petition for

a Writ of Certiorari should be denied.

a,

I.

THE SIXTH CIRCUIT PROPERLY

SUSTAINED THE DISTRICT COURT'S

CONCLUSION THAT KAECH'S

CONDUCT VIOLATED PLAINTIFFS'

CONSTITUTIONAL RIGHTS UNDER

"CLEARLY ESTABLISHED LAW," AS

VIEWED DURING YONTZ'S TENURE AS

PRINCIPAL.

Yontz first poses the threshold question whether

or not the Sixth Circuit was correct in holding that

Kaech's conduct violated plaintiffs’ constitutional rights

under "clearly established law," as viewed during Yontz's

tenure as principal, i.e., at any time between 1982 and

1991. Petition, pp. 11-18; see App. 5a6a. Plaintiffs

submit the Sixth Circuit was correct on this point: during

the relevant period, a principal in Yontz's position could

not objectively have harbored a reasonable belief that

Kaech's conduct was constitutionally permissible.°

In 1980, two years before Yontz became principal

* As early as 1974, eight years before Yontz became principal at HES, a

Southern District of Ohio decision involving the very same Springfield City

School District, Sims v. Wain, 388 F.Supp. 543, 549 (S.D. Ohio 1974),

stated that corporal punishment had been held to violate the Fourteenth

Amendment where it was “arbitrary, capricious, unreasonable, or wholly

unrelated to the competency of the state in determining its educational

policy.” In this case, the district court found that, under Sims, Kaech's

conduct was clearly unconstitutional as of 1982, the first incident of a

plaintiff being abused and the year Yontz became principal. App. 52a.

Because the Sixth Circuit relied on its own precedents in deciding this case,

the court of appeals did not find it necessary to address whether or not Sims

had clearly established that conduct such as Kaech's was constitutionally

impermissible.

at HES, the relevant test for a student's right to bodily

security in school was enunciated in Hall v. Tawney, 621

F.2d 607, 613 (4th Cir. 1980). This test is as follows:

As in the cognate police brutality cases, the

substantive due process inquiry in school

corporal punishment cases must be

whether the force applied caused injury so

severe, was so disproportionate to the need

presented, and was so inspired by malice or

sadism rather than a merely careless or

unwise zeal that it amounted to a brutal

and inhumane abuse of official power

literally shocking to the conscience.

Id.

Within the 1982-91 period relevant to this case, the

Sixth Circuit adopted and applied the Hail test in toto.

Webb v. McCullough, 828 F.2d 1151, 1159 (6th Cir. 1987).

Webb is a particularly useful paradigm for purposes of the

instant case. In Webd, a school official (McCullough)

broke down a door, which hit a student. He then

grabbed the student, threw her against a wall, and

slapped her. Wedd, 828 F.2d at 1154. In Wedd, the Sixth

Circuit concluded that a reasonable trier of fact could

find that "the alleged blows were a brutal and inhumane

abuse of McCullough's official power, literally shocking to

the conscience." Jd. at 1159. Therefore, the Sixth Circuit

held in Wedd that, under the Hail test, the district court

had improperly granted summary judgment to the

defendant. Jd. The cause was remanded for a jury to

determine whether or not the alleged blows violated the

plaintiff's substantive due process rights under the

Fourteenth Amendment.

In the instant case, the conduct that plaintiffs

attributed to Kaech was at least as “cruel and inhumane"

and "shocking to the conscience” as that alleged against

the defendant in Webb. In Wedd, the Sixth Circuit

concluded that the single, momentary instance of abuse

to which the plaintiff was subjected could serve as the

basis for a valid substantive due process claim; the eleven

plaintiffs in this case endured comparable - in some

instances, more severe - physical and mental abuse at the

hands of Kaech over a nine-year period. Thus, the Sixth

Circuit was correct when it concluded in this case that,

under Hall and Webb, Kaech's alleged abusive conduct

was violative of the Fourteenth Amendment and was

clearly established as such during the relevant period.

App. 7a. Yontz noticeably has failed to point out any

decision rendered by this Court, the Sixth Circuit, or the

District Court for the Southern District of Ohio, whether

before or within the 1982-91 period, which might have

suggested to a reasonable school official in Yontz's

position that Kaech's conduct was constitutionally

permissible. The Sixth Circuit properly sustained the

district court's conclusion that Kaech's conduct violated

plaintiffs' constitutional rights under "clearly established

law," as viewed during Yontz's tenure as principal.

Finally, the Sixth Circuit took note of Yontz's

contention that plaintiffs had not produced sufficient

evidence to support the allegations on which plaintiffs

based their § 1983 claim against Kaech. App. 7a. Citing

this Court's decision in Johnson v. Jones, 115 S.Ct. 2151,

2156 (1995), however, the Sixth Circuit properly refused

to delve into Yontz's evidentiary argument. App. 7a. In

Johnson, this Court held that "sufficiency of the evidence"

issues are not reviewable in a Mitchell v. Forsyth appeal.

Johnson, 115 S.Ct. at 2156.’ Johnson added that, in a

Mitchell appeal from denial of summary judgment, the

only issue that an appellate court should decide is a purely

legal issue, which limits the inquiry to whether the district

court correctly found violations of "clearly established

rights" under the test of Anderson v. Creighton, 483 U.S.

635, 640 (1987) 115 S.Ct. at 1256. In reviewing a district

court's conclusion in a qualified immunity case that a

"clearly established right" has been violated, Johnson

stated that an appellate court could "take, as given, the

facts that the district court assumed when it denied

summary judgment for that (purely legal) reason." Jd. at

2159.

Yontz's two "clearly established rights" arguments

were and are undoubtedly dependent on his own self-

serving version of the facts. Yontz essentially confirms

this fact: at pages 12-13 of his Petition, he asserts that

plaintiffs’ allegations "do not implicate the substantive

due process protections of the Fourteenth Amendment."

Yontz asks this Court —- just as he asked the Sixth Circuit -

to assess this argument based not on the evidence

presented by plaintiffs, but on his own self-serving

affidavit. Petition, p. 12. Yontz's version of the facts, as

reflected in his affidavit, obviously conflicts sharply with

plaintiffs' version of the facts, as reflected in the record

evidence. As it was obligated to do in resolving Yontz's

motion for summary judgment, the district court viewed

the conflicting evidence in the light most favorable to

plaintiffs, the non-moving party. Under Johnson, the Sixth

Circuit was correct (a) in taking, as given, the version of

the facts on which the district court relied when it found

” At page 26 of his principal brief below, Yontz asked the Sixth Circuit

to reach precisely such an issue.

that Kaech's conduct violated clearly established law, and

(b) in refusing to be drawn into reviewing the sufficiency

of plaintiffs' evidence to support "the facts that the

district court assumed when it denied summary judgment

for that (purely legal) reason." Jd. at 2159. By tendering

the same self-serving evidentiary analysis here with

respect to whether or not Kaech's conduct violated clearly

established law, defendant is essentially inviting this

Court to deviate from the course it explicitly endorsed in

Johnson. The Court should reject this invitation.

Il.

THE SIXTH CIRCUIT CORRECTLY

CONCLUDED THAT THE

UNLAWFULNESS OF YONTZ'S

SUPERVISION OF KAECH, AND HENCE

HIS LIABILITY FOR HER CONDUCT,

WOULD HAVE BEEN APPARENT TO A

REASONABLE SCHOOL OFFICIAL IN

YONTZ'S POSITION BASED ON

RELEVANT CASES THAT WERE

DECIDED BEFORE OR WITHIN THE

1982-91 TIME FRAME.

Yonwz also contends that, even if Kaech's conduct

clearly violated plainuffs' constitutional rights under Webd

and its forebears, Ais potential liability for Kaech's

conduct was not clearly established before or within the

1982-91 period. This argument is also untenable.

Had Yontz reviewed the Sixth Circuit's decision in

Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.), cert.

denied, 459 U.S. 833 (1982), on the day he became

principal at HES, he would have known that at least since

10

Rizzo v. Goode, 423 U.S. 362 (1976), federal courts had

been imposing liability on supervisors for the

unconstitutional acts of their subordinates. Moreover, a

reasonable supervisor in Yontz's position could easily

have discerned from the Hays decision the Sixth Circuit's

test for supervisory liability under § 1983. In Hays, the

Sixth Circuit held that a supervisor may be held liable for

the unconstitutional acts of one of his subordinates if the

supervisor “implicitly authorized, approved, or knowingly

acquiesced in" the subordinate's offending conduct. Hays,

668 F.2d at 874.

Yontz contends he could not have known of his

potential liability under the Hays test because he, unlike

the defendant in Hays, claimed never to have had any

“direct knowledge" of his subordinate's unconstitutional

behavior. Petition, p. 23.° This position fails for two

reasons.

First, Yontz's argument that he had no direct

knowledge of Kaech's unconstitutional behavior, like his

* Yontz also implies that his potential liability for Kaech's conduct would

not have been apparent from a review of Hays because Hays is a police

brutality case, while the conduct at issue here took place “in a school setting

...." Petition, p. 24. In this regard, plaintiffs remind the Court that the

Sixth Circuit's test for determining the constitutionality of abusive conduct

in a school setting was borrowed from police brutality cases. Webb v.

McCullough, 828 F.2d at 1159, quoting Hall v. Tawney, 621 F.2d at 613

(“Just as in police brutality cases, due process is violated by a school official

if the force applied caused injury so severe, was so disproportionate to the

need presented, and was so inspired by malice or sadism rather than a

merely careless or unwise zeal that it amounted to a brutal and inhumane use

of official power literally shocking to the conscience."). Yontz could not

reasonably have harbored the illusion that, while Kaech's underlying conduct

would be held up to the standard enunciated in police brutality cases, his

own conduct would be held up to a standard different from that applied to

supervisors in police brutality cases.

1]

argument that Kaech's behavior was not unconstitutional,

hinges on a "sufficiency of the evidence" analysis that

seeks to focus the Court's attention on Yontz's own self-

serving affidavit, rather than on inferences the district

court drew from plaintiffs’ evidence.” Compare Petition,

pp. 26, 28-9 with App. 37a, 38a, 40a, 58a. For the same

reasons discussed in Section I, ante, the Court should

reject Yontz's invitation to deviate from Johnson, 115 S.Ct.

at 2156, and to delve into an "evidence sufficiency"

analysis. The only proper course is for this Court - like

the Sixth Circuit before it - to take, as given, the version

of the facts on which the district court relied in denying

summary judgment.”” In this regard, the district court

described long-term abuse by Kaech and a pattern of

deliberate indifference to Kaech's abuse, which began

before and continued after Yontz became principal. For

instance, the district court indicated that a reasonable

trier of fact could find that Kaech slammed pupils' faces

into their desks. App. 59a. In one instance, a

grandmother of one child reported that Kaech injured

the child twice in a few months. Yontz told her nothing

happened and refused to set up a meeting with Kaech

and the grandmother. App. 37a. One _ plaintiff

complained to Yontz that Kaech had hit her, leaving a

bruise. Yontz believed Kaech's denial and did nothing.

Id. In 1990, a mother complained that Kaech had abused

* Yontz’s reliance on his own version of the facts, rather than on the facts

assumed by the district court, distinguishes the situation presented by the

instant Petition from that present in Behrens v. Pelletier, 116 S.Ct. 834, 842

(1996).

'° The Sixth Circuit noted, "[Yontz] contends that Plaintiffs have not

produced sufficient evidence to establish genuine issues of material fact as

to... whether Yontz was deliberately indifferent to Plaintiffs’ complaints."

App. 7a. Citing Johnson, the Sixth Circuit concluded, "[W]e may not

consider Yontz’'s fact-related arguments in this appeal." App. 7a.

12

her daughter. Yontz said he could never believe one of

his teachers would do something like that. Jd. A mother

of one plaintiff complained to Yontz that Kaech scratched

her son with a pencil. Kaech denied it. Yontz believed

Kaech without ever talking to the child. Jd. In 1991, a

mother complained to Yontz that Kaech had pushed her

daughter out of a desk, causing a knee injury. Yontz told

the mother to prepare a complaint and that, if she did, he

would have to do something about it. In response, Yontz

did what he always did - he believed Kaech. Jd. As the

district court stated, construing the evidence in the

manner most favorable to plaintiffs, Yontz knew of a

pattern of abuse by Kaech; however, he demonstrated

deliberate indifference to plaintiffs’ constitutional rights

and, by acquiescing in the conduct, Yontz thereby caused

more of it. App. 40a, 38a n. 30. In short, the evidence

relied upon by the district court fully supports the Sixth

Circuit's conclusion, based on Hays, that plaintiffs

asserted violations of clearly established law by Yontz.

Second, a reasonable supervisor in Yontz's position

would have learned from Leach v. Shelby County Sheriff,

891 F.2d 1241, 1246 (6th Cir. 1989) (quoting Hays), and

City of Canton v. Harris, 489 U.S. 378 (1989), that, when a

supervisor displays “deliberate indifference" to his

subordinates’ unconstitutional acts (as plaintiffs’ evidence

suggested Yontz did), § 1983 liability may result. Had

Yontz read Leach, it would surely have disabused him of

the notion he advanced before the Sixth Circuit as a basis

for qualified immunity, i.e., that his "see no evil"

approach to Kaech's misconduct was sufficient to

13

preclude § 1983 liability."’

'' Significantly, in Leach, the Sixth Circuit, borrowing from Hays, found

"deliberate indifference” based not just on what the supervisor knew, but

also what he “should have known” about the constitutionality of his

subordinates’ conduct. Leach, 891 F.2d at 1246. This analysis, of course, is

consistent with Anderson v. Creighton, 107 S.Ct. at 3040 (1987), in which

this Court stated that the defendant's subjective beliefs about the

permissibility of the allegedly unconstitutional conduct are irrelevant.

14

CONCLUSION

The unlawfulness of both Kaech's conduct and

Yontz's supervisory behavior would have been apparent

from a review of the cases cited in the Sixth Circuit's

decision and in this brief. Anderson v. Creighton, 483 U.S.

at 640. All of these cases were decided by this Court, the

Sixth Circuit, or the District Court for the Southern

District of Ohio either before or within the relevant 1982-

91 time frame. The Sixth Circuit was correct in so

holding. For all of the foregoing reasons, the Petition for

a Writ of Certiorari should be denied.

Respectfully submitted,

Stanley M. Chesley

Counsel of Record

Waite, Schneider, Bayless

& Chesley Co., L.P.A.

1513 Central Trust Tower

Cincinnati, Ohio 45202

(513) 621-0267

Paul M. De Marco

Waite, Schneider, Bayless

& Chesley Co., L.P.A.

1513 Central Trust Tower

Cincinnati, Ohio 45202

(513) 621-0267

15

APPENDIX A

FILED

Jan. 5, 1996

Leonard Green, Clerk

NOT RECOMMENDED FOR PUBLICATION

Nos. 94-3767 and 94-3770

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AMY D. ADAMS, et al. )

)

Plaintiffs-Appellees, )

) ON APPEAL FROM

) THE UNITED STATES

v. ) DISTRICT COURT

) FOR THE SOUTHERN

) DISTRICT OF OHIO

RICHARD YONTZ, )

)

Defendant-Appellant )

BEFORE: MARTIN, JONES, Circuit Judges; and

la

Nos. 94-3767 and 94-3770

Adams v. Yontz

BELL, District Judge’

PER CURIAM. This is a § 1983 case. Plaintiffs,

eleven former and current elementary school students,

allege that Defendant Richard Yontz and several other co-

Defendants violated their substantive due process rights.

Yontz invoked qualified immunity, and the district court

granted in part and denied in part his claim. Yontz

appeals that decision, and we affirm.

Plaintiffs were enrolled in a special education

program for the deaf and hearing impaired at Highlands

Elementary School (“HES”) in Springfield, Ohio. HES is

located in Springfield City School District (“SCSD”).

Defendant Beverly Kaech served as Plaintiffs’ instructor.

Plaintiffs accuse Kaech of inflicting physical and mental

abuse on them from 1980 to January 1991. According to

Plaintiffs, Kaech hit them, shoved them, threw books at

them, yelled at them, and insulted them. Several

Plaintiffs claim that Kaech caused them serious physical

injury. Kaech denies Plaintiffs’ allegations.

Yontz served as HES principal from 1982 to 1991,

during which most of these alleged incidents occurred.

Plaintiffs claim that they submitted several oral and

written complaints about Kaech to Yontz and the SCSD.

They maintain that Yontz invested little time and effort in

responding to these complaints. J.A. at 114-17. Yontz,

The Honorable Robert Holmes Bell, District Judge, United

States District Court for the Western District of Michigan, sitting by

designation.

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Nos. 94-3767 and 94-3770

Adams v. Yontz

however, claims that he never saw Kaech abuse Plaintiffs.

He also insists that he only received three complaints and

that he adequately investigated each of these claims.

On April 10, 1992, Plaintiffs filed a Complaint

naming Kaech, Yontz, and SCSD as Defendants. In their

§ 1983 claim against Yontz, they asserted that Yontz was

“under a duty to protect [them]” from Kaech because

they enjoyed a “special custodial relationship” with Yontz.

J.A. at 66. Moreover, they alleged that Yontz’s

indifference towards their allegations against Kaech

resulted in a violation of their substantive due process

rights. Id. at 66-7.

On May 3, 1993, after nearly a year of discovery,

Yontz moved for summary judgment on the basis of

qualified immunity. He argued that Plaintiffs had failed

to establish an actionable constitutional right to be

protected from Kaech’s abusive conduct because he did

not have a special custodial relationship with them. J.A.

at 188-89. Yontz also averred that Plaintiffs failed to

allege that his indiZ‘erence constituted a violation of

clearly established law. Id. at 191-93.

On March 31, 1994, the district court sustained in

part and overruled in part Yontz’s request for qualified

immunity. While the court agreed with Yontz that he had

no affirmative duty to protect Plaintiffs, it refused Yontz

full qualified immunity. The court reasoned that under

clearly established law, Yontz could be held liable for

Kaech’s abusive conduct because he served as Kaech’s

supervisor. J.A. at 145. On July 14, 1995, Yontz filed a

Notice of Appeal. Plaintiffs moved the court to certify

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Nos. 94-3767 and 94-3770

Adams v. Yontz

Yontz’s appeal as frivolous. Yontz also filed a Motion to

Stay Trial Pending Appeal, in which he maintained that

Plaintiffs had not asserted a clearly established right so as

to assign him liability. J.A. at 1148-51. In an expanded

opinion filed July 25, 1994, the district court reaffirmed

its earlier decision to deny Yontz full qualified immunity,

certified his appeal as frivolous, and denied Yontz’s

Motion to Stay Trial. J.A. at 1162-77. The district court

ordered the parties to proceed to trial; however, it

granted Yontz leave to appeal both of its decisions. This

consolidated appeal followed.

Yontz presents two issues on appeal. The first

issue is whether the district court erred in refusing him

summary judgment on the basis of qualified immunity.

The second issue is whether the district court erred in

certifying his appeal as frivolous.

A. Yontz’s Motion for Summary Judgment

The first issue involves the court’s denial of

summary judgment. “We review a district court’s grant

[or denial] of summary judgment de novo.” Russo v. City

of Cincinnati, 953 F.2d 1036, 1041 (6th Cir. 1992) (citing

Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th

Cir.), cert. denied, 498 U.S. 940 (1990)). Yet this

interlocutory appeal presents questions of qualified

immunity which are “conceptually distinct from the

merits of the plaintiff's claim.” Mitchell v. Forsyth, 472

U.S. 511, 527 (1985). As a result, the sole issue facing the

court in Forsyth appeals is “whether the legal norms

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Nos. 94-3767 and 94-3770

Adams v. Yontz

allegedly violated by the defendant were clearly

established at the time of the challenged actions.” Jd. at

528; Harlow v. Fitzgerald, 457 U.S. 800, 818 (1981).

Once a § 1983 defendant has claimed qualified

immunity, the plaintiff carries the ultimate burden of

proving that the claimed right is clearly established so as

to defeat the defendant's qualified immunity claim.

Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991).

In doing so, the plaintiff may draw from: i) Supreme

Court precedent; ii) Sixth Circuit precedent; or iii) cases

from other circuits which “point unmistakenly to the

unconstitutionality of the conduct and be so clearly

foreshadowed by applicable direct authority as to leave no

doubt in the mind of a reasonable [official] that his

conduct was unconstitutional.” Mumford v. Zieba, 4 F.3d

429, 432-33 (6th Cir. 1993).

In order to determine whether a § 1983 defendant

violated a “clearly established” right, the reviewing court

must employ an “objective reasonableness” test. Anderson

v. Creighton, 483 U.S. 635, 640 (1987). Under this test,

“the contours of the [claimed] right must be sufficiently

clear that a reasonable official would understand that

what he is doing violates that right.” Jd. In other words,

“in the light of pre-existing law the unlawfulness must be

apparent.” Jd. Consequently, “[i]f officials of reasonable

competence objectively could disagree on the law,

immunity should be recognized.” Cameron v. Seitz, 38

F.3d 264, 272 (6th Cir. 1994) (quoting Mumford, 4 F.3d at

432).

Applying these principles to the case at bar, the

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Nos. 94-3767 and 94-3770

Adams v. Yontz

relevant inquiry for the purposes of our qualified

immunity analysis is whether the law clearly established

supervisory liability on principals for the unconstitutional

actions of their subordinates at the time that the alleged

incidents occurred. We believe that it did. In Hays v.

Jefferson County, 668 F.2d 869, 874 (6th Cir.), cert. Denied,

459 U.S. 833 (1982), this court held that § 1983 claimants

may maintain a cause of action against a supervisory

official if they can prove that “at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional

conduct of the offending officers.” Id. (emphasis added);

quoted in Leach v. Shelby County Sheriff, 891 F.2d 1241,

1246 (6th Cir. 1989), cert. denied. 495 U.S. 932 (1990).

The Third Circuit, moreover, specifically authorized

supervisory liability claims against principals for the

abusive conduct of teachers in Stoneking v. Bradford Area

School Dist. (Stoneking II), 882 F.2d 720, 730 (3d Cir.

1989), cert. denied,493 U.S. 1044 (1990). Therefore, the

law has been clearly established since at least 1982 that

Yontz could be held liable as a supervisory official for the

constitutional torts of his subordinates. IJd.; Hays, 668

F.2d at 874.

In order for an official to be held liable under a

theory of supervisory liability, the underlying conduct of

his subordinate must violate clearly established law. Hays,

668 F.2d at 874. In Hall v. Tawney, 621 F.2d 607, 613 (4th

Cir. 1980), the Fourth Circuit held that the substantive

due process rights of students are violated when a teacher

applies force which “cause[s] injury so severe, was so

disproportionate to the need presented, and was so

inspired by malice or sadism rather than a merely careless

or unwise excess of zeal that it amounted to a brutal and

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Nos. 94-3767 and 94-3770

Adams v. Yontz

inhumane abuse of official power literally shocking to the

conscience.” This circuit adopted the Hall standard in

Webb v. McCullough, 828 F.2d 1151, 1158-59 (6th Cir.

1987) Thus Hall and Webb explicitly state that the

Fourteenth Amendment proscribes the abusive conduct

which Plaintiffs allege against Kaech. Consequently,

Kaech’s conduct could result in supervisory liability

against Yontz if it is proven at trial that he was

deliberately indifferent to such conduct. Hays, 668 F.2d

at 874. Yontz, however, contends that Plaintiffs have not

produced sufficient evidence to establish genuine issues

of material fact as to whether Kaech unconstitutionally

abused her students or whether Yontz was deliberately

indifferent to Plaintiffs’ complaints. This court, however,

may not address sufficiency of the evidence claims on

appeal. Johnson v. Jones, 115 S.Ct. 2151, 2157 (1995). The

Johnson Court noted that Forsyth appeals involve a pure

question of law; thus, “an appellate court reviewing the

denial of the defendant’s claim of immunity need not

consider the correctness of the plaintiff's version of the

facts, nor even determine whether the plaintiff's

allegations actually state a claim.” Jd. at 2156. The court

reasoned that “an interlocutory appeal concerning

[factual issues] ... makes unwise use of the appellate

courts’ time, by forcing them to decide in the context of

a less developed record, an issue very similar to one they

may well decide anyway later, on a record that will permit

a better decision.” Jd. at 2158. Therefore, we may not

consider Yontz’s fact-related arguments in this appeal. Jd.

Because Plaintiffs have asserted violations of

clearly established law against Yontz, and because Yontz’s

factual arguments are not properly addressed on appeal,

7a

we uphold the district court’s denial of Yontz’s Motion

for Summary Judgment on grounds of qualified

immunity.

B. Certification of Yontz’s Appeal as Frivolous

Yontz’s second argument on appeal is that the

district court improperly dismissed his appeal as

frivolous. We agree. In doing so, we rely on Dickerson v.

McClellan, 37 F.2d 251 (6th Cir. 1994). Dickerson involved

facts which are substantially similar to those presented in

this case. In Dickerson, the district court denied the

defendants qualified immunity, and the defendants filed

a notice of appeal. Jd. The plaintiffs moved to certify

defendants’ appeal as frivolous, and the district court

granted that motion. Jd. at 252. Thereafter, the district

court dismissed the defendants’ notice of appeal. This

court vacated the ruling of the district court, reasoning

that “[a] proper notice of appeal divests the court of

jurisdiction and transfers jurisdiction to the court of

appeals.” Id. (citing Lewis v. Alexander, 987 F.2d 392, 394

(6th Cir. 1993)). In light of Dickerson, we find that the

district court’s decision to certify Yontz’s Forsyth appeal as

frivolous was in error.

Il.

For the reasons stated herein, we AFFIRM the

decision of the district court denying Yontz’s Motion for

Summary Judgment, and VACATE the district court’s

certification of Yontz’s appeal as frivolous.

8a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AMY D. ADAMS, etal., —_)

)

Plaintiffs, )

)

v. ) Case No.

) C-3-92-157

BEVERLY KAECH, etal., ) JUDGE WALTER

) HERBERT RICE

)

Defendants.

EXPANDED OPINION SETTING FORTH COURT'S

REASONS FOR SUSTAINING IN PART AND

OVERRULING IN PART MOTION OF DEFENDANTS

SPRINGFIELD CSD AND YONTZ TO STRIKE (DOC.

#83); EXPANDED OPINION SETTING FORTH

COURT’S REASONS FOR SUSTAINING IN PART AND

OVERRULING IN PART MOTION OF DEFENDANTS

SPRINGFIELD CSD AND YONTZ FOR SUMMARY

JUDGMENT (DOC. #58); PLAINTIFFS GIVEN LEAVE

TO FILE LIMITED AMENDED COMPLAINT

This case arises out of allegations that Defendant

Beverly Kaech (“Kaech”) mistreated some of the students

9a

she taught at Highlands Elementary School

(“Highlands”). Highlands is located in Springfield, Clark

County, Ohio, and is operated by Defendant Springfield

City School District (“Springfield CSD”). Kaech taught

children with hearing disabilities, who were in grades

three, four and five. In February, 1991, after allegations

of Kaech’s mistreatment of her students surfaced, Darrell

Heckman (“Heckman”), the part-time county prosecutor

for Champaign County, Ohio, was appointed to

investigate and to prosecute the allegations. Heckman

prosecuted Kaech for child endangering, by cruelly

abusing a child, in violation of Ohio Revised Code §

2919.22(B)(2). The prosecution ended on September 20,

1991, when the trial judge entered a judgment of

acquittal in favor of Kaech.

On April 10, 1992, the Plaintiffs’ initiated this

action, in which they allege that Kaech physically and

emotionally abused them. Plaintiffs assert claims under

federal and state law against Kaech and federal claims

against Springfield CSD and Richard Yontz (“Yontz”),

who was the principal at Highlands. In particular,

Plaintiffs set forth, in their complaint (Doc. #1), the

following claims, to wit: 1) state law claims for assault,

battery and the intentional infliction of emotional distress

against Kaech (Counts I-IX)’; 2) a claim under 42 U.S.C.

§ 1983 against Kaech, in which they allege that Kaech

deprived them of their liberty interest to bodily security

and physical integrity guaranteed by the Fourteenth

Amendment, a substantive due process claim (Count X);

' The Plaintiffs are Kaech’s former students or parents of such

students.

2 One such count is set forth for each of the nine Plaintiffs.

10a

PCA AE ee Po ANE ee ER AT. NE AP A Eat

"the bine Spe Otel, ee Cable

3) a state law claim for the negligent infliction of

emotional distress, against Kaech (Count XI); 4) a § 1983

claim against Yontz, in which they allege that Yontz was

recklessly indifferent to the incidents of abuse allegedly

committed by Kaech, which indifference caused them to

suffer a deprivation of their liberty interest to bodily

security and physical integrity guaranteed by the

Fourteenth Amendment (Count XII); 5) a § 1983 claim

against Springfield CSD, in which Plaintiffs allege that a

custom, practice or policy of the school district created a

climate whereby Kaech could abuse her students (Count

XIII); and 6) a claim for punitive damages against all

Defendants (Count XIV).

After initial pretrial discovery, Springfield CSD

and Yontz moved for summary judgment. See Doc. #58.

In opposition to that motion for summary judgment,

Plaintiffs filed an extensive appendix containing affidavits

and other evidence. See Doc. #79. Springfield CSD and

Yontz, in turn, moved to strike much of the evidence

presented by the Plaintiffs. See Doc. #83. On March 30,

1994, this Court entered an Order sustaining in part and

overruling in part the motion of Springfield CSD and

Yontz to strike (Doc. #83). See Doc. #117. The following

day, March 31, 1994, this Court entered an Order

sustaining in part and overruling in part the motion of

Springfield CSD and Yontz for summary judgment (Doc.

#58). See Doc. #119. In this expanded Opinion, the

Court sets forth its reasons, together with citations to

authority, for sustaining in part and overruling in part the

motions of Springfield CSD and Yontz to strike (Doc.

#83) and for summary judgment (Doc. #58).

lla

I. Motion of Springfield CSD and Yontz to strike (Doc.

#83)

With their motion to strike, Springfield CSD and

Yontz seek to have the Court strike the following

evidentiary materials, to with: 1) portions from the

affidavit of Jean W. Hrinko (“Hrinko”); 2) portions from

the affidavit of Glinda Sprague (“Sprague”); 3) portions

from the affidavit of Charlotte Attenweiler

(“Attenweiler”); 4) portions from the affidavit and reports

of Joseph V. Cresci, M.D. (“Cresci”); 5) police interviews;

6) Yontz’ January 31, 1991, statement; and 7) the January

30, 1991, statement of Jane Roark (“Roark”).°

As a means of analysis, the Court will initially set

forth certain general legal standards which apply to many

of the items of evidence, which Springfield CSD and

Yontz seek to have stricken. Rule 56(e) of the Federal

Rules of Civil Procedure provides that “affidavits shall be

made on personal knowledge [and] shall set forth such

facts as would be admissible in evidence.” The Sixth

Circuit has consistently held that Rule 56(e) mandates

that affidavits which consist only of hearsay or

inadmissible opinion evidence must be disregarded. Dole

v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968 (6th Cir.

1991); State Mut. Life Assur. Co. v. Deer Creek Park, 612

F.2d 259, 264 (6th Cir. 1979). Similarly, a court must

disregard rumors, conclusory allegations and the affiant’s

subjective beliefs. Mitchell v. Toledo Hospital, 964 F.2d 577

(6th Cir. 1992). When an affidavit contains a statement

which is hearsay and which also has a non-hearsay

purpose (i.e., a purpose other than to prove the truth of

the matter asserted in the statement), a court may

> These evidentiary materials are part of Doc. #79.

12a

consider the statement for (and only for) its non-hearsay

purpose. See Rule 801(c); United States v. Pulley, 922 F.2d

1283, 1287-88 (6th Cir. 1991) (Court properly admits

hearsay testimony for its non-hearsay purpose). Of

course, a court will only disregard that portion of the

affidavit which is objectionable. Wimberly v. Clark

Controller Co., 337 F.2d 225, 227 (6th Cir. 1966); 10A

Wright, Miller & Kane, Federal Practice and Procedure,

§ 2738 at 509-11. A motion to strike is the appropriate

procedural mechanism for a party to challenge affidavits

and other evidentiary materials which have been

presented in support of or in opposition to a motion for

summary judgment. Jd. at 507-09. Indeed, when a party

fails to move to strike such affidavits or other evidence, a

court does not commit error by considering same. Moore

v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993). With these

general standards in mind, the Court turns to the parties

arguments regarding the various items of evidence,

addressing them in the above order.

First, Springfield CSD and Yontz argue that

Hrinko’s affidavit,‘ in particular §§ 48, contain

inadmissible heresay; therefore, the affidavit must be

stricken. The Court agrees with these Defendants that JJ

6 and 7 contain only inadmissible hearsay. In these

paragraphs of her affidavit, Hrinko sets forth allegations

of abuse by Kaech, which were told to her by a student,

Jon DuPree (“DuPree”), and the cook at Highlands, Mary

Haynes (“Haynes”). In { 6, Hrinko sets forth incidents of

abuse which were related to her by DuPree. Plaintiffs

argue that the DuPree’s statement, set forth by Hrinko

* Hrinko was a teacher at Highlands during the 1977 school year,

the time at which the incidents she relates in her affidavit occurred.

Hrinko’s affidavit is Tab 2 of Doc. #79.

13a

in J 6 of her affidavit, comes within the exception to the

hearsay rule for excited utterances. See Rule 803(2). A

excited utterance is “[a] statement relating to a startling

event or condition made while the declarant was under

the stress of excitement caused by the event or

condition.” Jd. The flaw in Plaintiffs’ argument is that

they have not laid a foundation, demonstrating that

DuPree’s statement was an excited utterance. In other

words, Hrinko’s affidavit does not contain sufficient facts

for the Court to determine that DuPree made the

statement while he was “under the stress of excitement

caused by the event or condition.” Rather, in J 6, Hrinko

merely states that DuPree approached her and told her

that Kaech had slapped him in the face. Therefore, the

Court sustains the motion to strike, as it relates to { 6,

and will not consider it in ruling on the motion for

summary judgment; however, that conclusion will not

necessarily prevent Hrinko from testifying about

DuPree’s statement, at trial, assuming a proper

foundation can be laid. In J 7, Hrinko states that Haynes

told her that she observed Kaech become upset with and

slap a number of students. Although Haynes was

apparently an employee of Springfield CSD, there is

simply no evidence that she was authorized to make that

statement or that it concerned a matter which was within

the scope of her agency. Therefore, the Court concludes

that the statement of Haynes was not the admission of an

agent of a party opponent, as that term is used in Rule

801(d)(2)(D). Accordingly, the Court strikes { 7 from

Hrinko’s affidavit and will not consider same when ruling

on the motion for summary judgment.

The Court does not agree with Springfield CSD

and Yontz that { 4, 5 and 8 of that affidavit contain

inadmissible hearsay, and, thus, must be stricken. In { 4,

Hrinko states that, following an incident in which she saw

l4a

;

¢

.

Kaech shake and slap a student, Aaron Kneisley

(“Kneisley”), in the face,’ Kneisley told her that Kaech hit

him often for no apparent reason. In 5, Hrinko states

that, as a result of the incident involving Kneisley and

Kaech, she personally approached George Koerner

(“Koerner”), who was then the principal at Highlands,

and told him that she wanted to speak with him about a

teacher. Koerner’s response was that he did not want to

hear complaints about any teacher. With respect to { 4,

Hrinko’s statement has a non-hearsay purpose (i.e., the

statement has an evidentiary purpose beyond proving the

truth of the matter asserted therein), as it explains, in

part, her attempt to speak with Koerner. See Rule 801(c).

Therefore, when ruling on the motion for summary

judgment, the Court will consider J 4 of Hrinko’s

affidavit, although not for the purpose of proving the

truth of Kneisley’s statement.® With respect to J 5, the

Court does not consider Koerner’s statement to be

hearsay. At the time he made it, Koerner was the

principal at Highlands and was authorized to make

statements regarding complaints about teachers;

therefore, Koerner’s statement was one by an agent of a

party opponent. See Rule 801(d)(2)(D). Koerner’s

statement may also be considered for the non-hearsay

purpose of showing that he had notice of complaints of

* Hrinko relates the incident in J 3 of her affidavit.

* Plaintiffs argue that Kneisley’s statement was an excited utterance;

thus, it comes within an exception to the hearsay rule. See Rule

803(2). This Court does not agree. Simply stated, Hrinko does not

indicate, in her affidavit, that Kneisley made the statement while

under the stress of being hit by Kaech or having been hit by her.

Thus, Plaintiffs have failed to demonstrate that Kneisley’s statement

was an excited utterance.

15a

abuse - whether or not those complaints were true.

Accordingly, when ruling on the motion for summary

judgment, the Court will consider J 5 of Hrinko’s

affidavit. In § 8 of her affidavit, Hrinko stated that two

students, Heather Watkins and Kimberly Beverley, would

come into her classroom, crying, after leaving Kaech’s

classroom and tell her (Hrinko) that they had been hit by

Kaech. The Court agrees with Plaintiffs that the

statements of Watkins and Beverley were excited

utterances. Hrinko’s statement that the two students

would come crying into her classroom is sufficient to lay

a foundation that the students told her that they had been

hit by Kaech, while under the stress of excitement caused

by having been hit. Therefore, the Court overrules the

motion to strike, as it relates to § 8 of Hrinko’s affidavit

and will consider same when ruling on the motion for

summary judgment.’

Second, Springfield CSD and Yontz argue that {J

3, 4 & 8 in Sprague’s affidavit should be stricken.*

Sprague is the mother of Kimberly Beverley (“Beverley”),

a student of Kaech’s during the 1978-79 and 1979-80

school years. With respect to { 3, these Defendants argue

that Beverley’s statement, through Sprague, that Kaech

had caused the scratches on her arm are inadmissible

hearsay. The Court does not agree, the allegedly,

objectionable statements have a non-hearsay purpose;

they explain why Sprague took certain subsequent

actions. See Rule 80l{c). Therefore, the Court will

” The Court will also consider [J 1-3 of that affidavit, because that

do not appear to contain hearsay and because the Defendants have

not specifically argued that the statements contained in those

paragraphs should be stricken.

* Sprague’s affidavit is Tab 3 of Doc. #79.

l6a

consider Sprague’s recitation of Beverley’s statements

contained in J 3 of the former’s affidavit, although not

for the truth of Beverley’s statements. In J 4 of her

affidavit, Sprague states that, after Beverley told her that

Kaech had caused the scratches on her arm, Sprague

“immediately called Thomas Payton, the Superintendent

of Schools and was able to discuss my observations and

concerns about Beverly Kaech with his office.”

Springfield CSD and Yontz contend that Sprague’s

statement, that she was able to discuss her observations

and concerns with Payton’s “office,” must be stricken

because it is not relevant. These Defendants argue that

the statement is not relevant because it does not

demonstrate that Payton or anyone in his office had

notice of Kaech’s actions. This Court does not agree.

Sprague’s telephone call to Payton and her conversation

with that office does make it more likely than not that the

Superintendent of Defendant Springfield CSD had notice

of Kaech’s actions regarding Beverley.’ See Rule 401. In

{1 8 of her affidavit, Sprague talks about a meeting she

had with Koerner, Kaech and Kaech’s attorney. During

that meeting, Sprague told Koerner about incidents of

physical contact between her daughter and Kaech. In

addition, Sprague states that “I also informed George

* +These Defendants also argue that the statement in { 4 of Sprague’s

affidavit is not relevant because she informed an inanimate object, an

office, of her observations and concerns regarding Kaech. That

somewhat unique argument is without merit. Plaintiffs have

submitted Sprague’s affidavit as part of their evidence opposing the

motion for summary judgment. As such, this Court is obligated to

construe that evidence in the light most favorable to the Plaintiffs.

Kentucky Div. Horseman's Benev. v. Turfway Park, 20 F.3d 1406, 1411

(6th Cir. 1994). A fair (and the only reasonable) construction of

Sprague’s statement is that she conversed with a person in the office

and not merely with the office itself.

17a

Koerner during that meeting that I was aware that other

students had been abused by Beverly Kaech.” Springfield

CSD and Yontz argue that the quoted sentence must be

stricken because it is hearsay and rumor. The Court does

not agree. Once again, this statement is offered for a

non-hearsay purpose, to demonstrate that Koerner was

told about and had notice of allegations of abuse by

Kaech, whether such allegations were true or not. See

Rule 801(c). However, the Court will not consider that

statement for the purpose of proving the truth of what is

asserted therein (i.e., that other students had been abused

by Kaech). Based upon the foregoing, the Court

overrules the motion to strike (Doc. #83), as it relates to

Sprague’s affidavit."°

Third, Springfield CSD and Yontz move to strike

{7 4, 8 and 11 of Attenweiler’s affidavit." Attenweiler,

who taught hearing impaired students for Springfield

CSD from 1972 until 1983, sets forth, in {§ 24 of her

affidavit, her personal observations of Kaech, as a

teacher. In one sentence of § 4, Attenweiler states that

“[a]s time went on, it was my impression that Beverly

Kaech expected perfection from the children.” In [J 5-7

and 9-10, Attenweiler sets forth details regarding various

meetings she had with officials of the Springfield CSD,

including Payton and Koerner. In { 11, Attenweiler

states:

Throughout the numerous meetings I

attended as set forth above, I had the

‘© The Court will also consider the portions of Sprague's affidavit

to which the Defendants have not specifically objected.

‘. Attenweiler’s affidavit is Tab 4 of Doc. #79.

18a

impression that the method of handling the

allegations against Beverly Kaech was to

monitor Kimberly Beverly [sic] daily as she

left Beverly Kaech’s class and to accomplish

the transfer of students, including Kimberly

Beverly [sic], to another teacher. I was left

with the further impression that there

would be no investigation of the allegations

and that the administration was desirous of

handling the matter quietly.

Springfield CSD and Yontz argue that the quoted

sentences from { 4 and { 11 must be stricken because

Rule 56(e) does not allow affidavits that set forth an

affiant’s conclusions or beliefs and that Attenweiler’s

impressions are nothing more than her beliefs. Plaintiffs,

on the other hand, argue that these Defendants are

engaging in a semantic arguinent and that Attenweiler

had the opportunity to observe Kaech’s students. The

Court does not agree with Springfield CSD and Yontz

that the quoted sentences from § 4 and § 11 of

Attenweiler’s affidavit must be stricken. Those portions

of her affidavit are not merely conclusory allegations or

statements of subjective beliefs; rather, construing the

evidence in the manner most favorable to the Plaintiffs,

the Court concludes that Attenweiler’s impressions are

proper lay opinion testimony under Rule 701. To

determine whether an affidavit or portion thereof) may

be considered in ruling on a motion for summary

judgment, a court must decide whether the affidavit sets

forth “facts as would be admissible in evidence.” Rule

56(e). Applying that language, courts have held that lay

and expert opinions in affidavits, which are proper under

Rule 701 or Rule 702, may be considered in ruling on a

motion for summary judgment. Salas v. Carpenter, 980

F.2d 299 (5th Cir. 1992); In re Taubman, 160 B.R. 964,

19a

976 (Bkrtcy. S.D. Ohio 1993). Under Rule 701, lay

opinion testimony is admissible if it is:

(a) rationally based on the perception of the

witness and

(b) helpful to a clear understanding of the

witness’ testimony or the determination of a fact

in issue.

The quoted sentences from { 4 and { 11 of Attenweiler’s

affidavit are both based upon her personal perceptions of

events (with respect to J 4, Kaech’s manner of teaching,

and with respect to { 11, meetings which Attenweiler

attended). Moreover, the statements are helpful to a

clear understanding of Attenweiler’s testimony and to the

determination of a fact in issue, in particular, the reaction

of officials at Springfield CSD to allegations of abuse

against Kaech. The Court will not strike the quoted

sentences from { 4 or § 11 from that affidavit and will

consider the statements contained therein in ruling on

the motion for summary judgment."

In { 8 of her affidavit, Attenweiler sets forth what

she was told by Betty Eckels, an official from the

Springfield Education Association, a non-party to this

litigation. That statement is unquestionably hearsay.

Accordingly, the Court will strike the quoted sentences

from J 8 of Attenweiler’s affidavit and will not consider

the statements contained therein when ruling on the

motion for summary judgment.

‘2 The Court will consider the portions of Attenweiler's affidavit

to which Defendants have not specifically objected.

20a

ions. re ene ee ed

Fourth, Springfield CSD and Yontz present a

number of arguments in support of their contention that

WI 4 and 5 of Cresci’s affidavit and reports must be

stricken.'* Cresci is a psychiatrist who was retained by

Plaintiffs counsel to provide evaluations and

recommendations for treatment of the students of Kaech

who are either Plaintiffs or the children of Plaintiffs. In

his affidavit and in the reports, Cresci sets forth his

ev; “ons of these students, opining that they had

suffered various types of abuse from Kaech. The Court

deems it unnecessary to address the arguments of

Springfield CSD and Yontz regarding Cresci's affidavit

and report, because these Defendants do not argue, in

their motion for summary judgment, that they are

entitled to summary judgment on the basis that Kaech

did not abuse her students. Cresci’s affidavit and reports

are, therefore, of no relevance to the motion for

summary judgment. Therefore, any questions relating to

the ability of Cresci to present evidence, for consideration

by the Court or the jury, are not yet ripe for adjudication.

Accordingly, the Court will not consider Cresci's affidavit

and reports when ruling on the motion for summary

judgment;"* therefore, the Court overrules the motion to

strike, as moot, as it relates to that evidence.

Fifth, Springfield CSD and Yontz request that the

‘3 Cresci’s affidavit is Tab 5 of Doc. #79. The reports are Tabs 7-

14 of that document.

‘* In their memorandum in opposition (Doc. #77) to the motion for

summary judgment, the Plaintiffs do cite Cresci's affidavit; however,

the evidence supplied by Cresci is simply not relevant to the issues

raised by the motion for summary judgment and has not been

considered by the Court in ruling thereon.

2la

Court strike the various police interviews which the

Plaintiffs have submitted.'* These evidentiary materials

are transcriptions of interviews of a number of Kaech’s

students, which were conducted by Officer Davidson and

Sergeant Keys of the Springfield Police Department. In

none of the interviews, does it appear that the person

interviewed was under oath. The moving Defendants

argue that the interviews must be stricken, because their

unsworn nature makes them inadmissible hearsay.

Plaintiffs argue that Davidson and Keys authenticated the

interviews during their depositions. Plaintiffs miss the

point. Although Rule 56(e) requires exhibits to be

authenticated,"® Springfield CSD and Yontz do not

contend that the Court cannot consider the police

reports because they have not been authenticated.

Rather, these Defendants argue that reports are

inadmissible hearsay. The Court agrees with the

Defendants’ argument. Simply stated, the reports are

unsworn, out of court statements (whether authenticated

or not) offered to prove the truth of the matters asserted

therein, in other words, hearsay, and cannot be

considered in ruling on the Defendants’ motion for

summary judgment.” See Rules 801(c) and 802.

‘8 The police interviews are Tab 6 to Doc. #79.

‘€ Rule 56(a) provides in pertinent part, “[s]worn or certified copies

of all papers shall be attached [to an affidavit] and served therewith.”

This provision in Rule 56(e) imposes two requirements. Exhibits

must be authenticated by an affidavit, and an exhibit must be

attached to an affidavit (i.e., an affiant cannot testify as to the

contents of a document, without the document itself being provided).

See 10A Wright, Miller & Kane, Federal Practice and Procedure, §

2722.

'7 The Plaintiffs do not argue that the reports may be considered

under an exception to the hearsay rule, such as Rule 803(8). Such an

22a

i iliac

Therefore, the Court strikes the police reports and will

not consider same when ruling on the motion for

summary judgment.

Sixth, Springfield CSD and Yontz argue that the

Court must strike the unsworn statements of Jane Roark

(“Roark”) and Yontz."® These two statements are

narrations by Officer Davidson of statements he took

from the two. Roark is the mother of one of Kaech's

students. As such, her statement is inadmissible hearsay

and will not be considered in ruling on the motion for

summary judgment.” Yontz’ statement stands on more

solid footing. He is a party opponent; therefore, any out

| of court statement by him, sworn or unsworn, is not

hearsay. See Rule 801(d)(2). Although, the statement is

not properly authenticated with an affidavit, it was

identified during Davidson's deposition and sufficiently

. qualified as a public record under Rule 803(8).

Therefore, the Court will consider Yontz’ statement in

ruling on the motion for summary judgment.

em

OE en he A RN ee hit, acetate

Based upon the Court's reasoning for sustaining

argument would not have been persuasive, because of a double

hearsay problem with the reports. See Rule 805. The police reports

are recorded statements of students of Kaech and their parents.

There is simply no exception to the hearsay rule which would allow .

the Court to admit the statements of the students and their parents.

‘8 The statements of Roark and Yontz are Tabs 16 and 17,

: respectively.

*® Much of the information in Roark's statement has a non-hearsay

purpose, proving that the Defendants had notice of abuse by Kaech.

Therefore, if the statement had been sworn, it could have been

considered for that non-hearsay purpose.

Fhe. sn, Anh rma Sen net

23a

in part and overruling in part the motion to strike of

Springfield CSD and Yontz, the Court has stricken and,

as a result, will not consider the following evidentiary

materials when ruling on the motion for summary

judgment, to wit: 1) {§ 6 and 7 of Hrinko’s affidavit; 2)

{ 8 of Attenweiler’s affidavit; 3) Cresci’s affidavit and

reports; 4) the police reports; and 5) Roark’s statement.

II. Motion of Springfield CSD and Yontz for summ

judgment (Doc. #83)

In support of their motion for summary

judgment,” Springfield CSD and Yontz raise a number of

arguments, to wit: 1) they are entitled to summary

judgment because the Plaintiffs have not demonstrated

a constitutional right to be protected from allegedly

improper or inappropriate teacher conduct; 2)

Springfield CSD is entitled to summary judgment because

the Plaintiffs cannot establish the existence of a policy,

custom or practice which caused the alleged injuries; 3)

Yontz is entitled to summary judgment because the

Plaintiffs have failed to establish that he can be held

liable, as a school principal, under a theory of supervisory

liability; 4) they are entitled to summary judgment

because there is no evidence that either of them acted

intentionally, deliberately or with gross negligence toward

the Plaintiffs; and 5) Yontz, as a principal of a Springfield

20 Springfield CSD’s and Yontz’ motion for summary judgment is

directed at only three of the 14 counts in Plaintiffs’ complaint, to wit:

1) Count XII (a § 1983 claim asserted against Yontz); 2) Count XIII

(a § 1983 claim asserted against Springfield CSD; and 3) Count XIV

(a count by which Plaintiffs seek to recover punitive damages from all

defendants). In Counts I-XI, Plaintiffs do not seek to recover from

Yontz and/or Springfield CSD.

24a

ee ee ee

AD et Mel met ea

BS OI oy Ne Rt tn le al is A Ot

City school, is entitled to summary judgment on the basis

of qualified immunity. In addition, Springfield CSD and

Yontz argue that, even if they are not entitled to summary

judgment on the merits of Plaintiffs’ § 1983 claims

against them, they are entitled to summary judgment on

Plaintiffs’ demand for an award of punitive damages. As

a means of analysis, the Court will set forth the standards

which govern this, and every, motion for summary

judgment. Then, it will turn to the moving Defendants’

contentions, discussing them in the above order.

A. Standards governing motions for summary judgment

A motion for summary judgment “should be

granted where the evidence is such that it ‘would require

a directed verdict [now a judgment as a matter of law] for

the moving party."” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 25 (1986), quoting Sartor v. Arkansas Gas Corp.,

321 U.S. 620, 624 (1944). Summary judgment must be

entered “against a party who fails to make a showing

sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). Of course, the moving party:

always bears the initial responsibility of informing

the district court of the basis for its motion,

and identifying those portions of “the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits,

if any,” which it believes demonstrate the absence

of a genuine issue of material fact.

477 U.S. at 323. See also Boretti v. Wiscomb, 930 F.2d

1150, 1156 (6th Cir. 1991). (The moving party has the

“burden of showing that the pleadings, depositions,

25a

answers to interrogatories, admissions and affidavits in

the record, construed favorably to the nonmoving party,

do not raise a genuine issue of material fact for trial.”

quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 [6th Cir.

1987]). The burden then shifts to the nonmoving party

who “must set forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 250

(quoting Fed. R. Civ. P. 56(e)).

Once the burden of production has so shifted, the

party opposing a summary judgment cannot reset on its

pleadings or merely reassert its previous allegations. It is

not sufficient to “simply show that there is some

metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 547, 586

(1986). See also, Michigan Protection and Advocacy Service,

Inc., v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) (“The

plaintiff must present more than a scintilla of evidence in

support of his position; the evidence must be such that a

jury could reasonably find for the plaintiff.”). Rather,

Rule 56(e) “requires the nonmoving party to go beyond

the [unverified] pleadings” and present some type of

evidentiary material in support of its position. Celotex

Corp., 477 U.S. at 324. Summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with

the affidavits, if any, show there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c). Of

course, in determining whether a genuine issue of

material fact exists, a court must assume as true the

evidence of the nonmoving party and draw all reasonable

inferences in the favor of that party. Anderson, 477 U.S.

at 255 (emphasis added). In ruling on a motion for

summary judgment (in other words, in determining

whether there is a genuine issue of material fact), “[a]

26a

district court is not . . . obligated to wade through and

search the entire record for some specific facts that might

support the nonmoving party’s claim.” Interroyal Corp. v.

Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied,

494 U.S. 1091 (1990). See also, L.S. Heath & Son, Inc. v.

AT@&T Information Systems, Inc., 9 F.3d 561 (7th Cir. 1993);

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th

Cir.), cert. denied, 113 S. Ct. 98 (1992) (“Rule 56 does not

impose upon the district court a duty to sift through the

record in search of evidence to support a party's

Opposition to summary judgment....”). Thus, a court is

entitled to rely in determining whether a genuine issue of

material fact exists on a particular issue, only upon those

portions of the verified pleadings, depositions, answers to

interrogatories and admissions on file together with any

affidavits submitted, specifically called to its attention by

the parties.

B. Springfield CSD’s and Yontz argument that they are

entitled to summary judgment because the Plaintiffs have

not demonstrated a constitutional right to be protected

from allegedly improper _or inappropriate teacher

conduct.

Plaintiffs assert only claims under 42 U.S.C. § 1983

against Springfield CSD and Yontz. Section 1983 does

not create substantive rights; rather, it establishes a

remedy for a person who has been denied a federally

created right by a person acting under color of state law.

Baker v. McCollan, 443 U.S. 137 (1979). Consequently, §

1983 does not provide a remedy for alleged abuses of

power which do not violate federal law. Collins v. City of

Harker Heights, Texas, 112 S. Ct. 1061, 1065 (1992).

Applying these principles, Springfield CSD and

Yontz argue that they are entitled to summary judgment

27a

because the Plaintiffs have not demonstrated that the

allegations in their complaint violated a federally created

right, a constitutional right to be protected from allegedly

improper or inappropriate teacher conduct. In support

of this argument, these Defendants focus on cases in

which courts have distinguished schools from prisons and

mental hospitals and, based upon that distinction,

concluded that school officials do not have an affirmative

duty, under the Due Process Clause of the Fourteenth

Amendment, to protect students from abuse. See e.g.,

Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992); D.R. v.

Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364 (3d

Cir. 1992) (en banc); J.O. v. Alton Community Unit. Sch.

Dist. 11, 909 F.2d 267 (7th Cir. 1990); Elliott v. New Miami

Bd. of Ed., 799 F. Supp. 818 S.D. Ohio 1992). In reaching

their conclusion that school administrators do not have

an affirmative duty to protect students, these courts have

applied the Supreme Court’s holding in DeShaney v.

Winnebago County Dept. of Social Services, 489 U.S. 189

(1989) (holding that social workers were not liable, under

§ 1983, for failing to protect a minor from harm caused

by his father). In DeShaney, the Supreme Court held that,

in the absence of a special custodial relationship, persons

acting under color of state law do not have an obligation,

imposed by the Due Process Clause of the Fourteenth

Amendment, to protect individuals from harm caused by

private persons. Thus, in the above cited cases, the courts

have concluded that there is not a special custodial

relationship (such as that which exists between prison

officials and inmates or officials at a mental hospital and

patients) between school officials and students.

This Court does not quarrel with this line of cases.

Simply stated, there is not a special custodial relationship

between Springfield CSD and/or Yontz and the

28a

j

;

Plaintiffs;?’ therefore, in accordance with the Supreme

Court's decision in DeShaney, those Defendants did not

have an obligation, arising under federal law, to protect

the Plaintiffs from abuse by Kaech. Accordingly, these

Defendants are entitled to summary judgment, to the

extent that the Plaintiffs would impose liability upon

them for their failure to protect the Plaintiffs from

Kaech’s alleged abuse.

*) Plaintiffs argue that a “special relationship” existed between

themselves and the school district, because they were hearing

impaired. See Doc. #77 at 26-27. Although the fact that the Plaintiffs

are hearing impaired may distinguish them from students without

such an impairment, that fact alone does not transform their

relationship with the Defendants into a custodial one. In Elliott,

Judge Spiegel concluded that the relationship students have with their

schools did not resemble that which prisoners and patients have with

prisons and mental hospitals, noting:

While the state of Ohio has compelled [the plaintiff] to

attend school, the state has not restricted her freedom or her

parents’ freedom to take action as it has with prisoners or

patients of mental institutions. Students return home at the

end of the school day, where they (or their parents) are free

to act as any other person in our society. Prisoners and

patients of mental institutions, on the other hand, do not

have such rights. Furthermore, parents or guardians are the

primary caretakers of students; whereas, the state is the

primary caretaker of prisoners and patients of mental

institutions. we recognize that the state certainly has a

unique relationship with students of public schools; however,

it is not the special relationship which the state has with

prisoners and patients of mental institutions.

799 F. Supp. at 823. Herein, the Plaintiffs do not allege or present

evidence that, unlike other students, they were not free to leave

school at the end of each day or that they do not enjoy the same

freedoms of other students.

29a

However, this does not mean that these

Defendants are entitled to summary judgment on

Plaintiffs’ § 1983 claim in their entirety. As Plaintiffs

argue, they do not merely seek to impose liability upon

these Defendants because they failed to protect the

Plaintiffs from Kaech; rather, the Plaintiffs seek to impose

liability upon them for Kaech’s actions. Plaintiffs seek to

impose liability on Springfield CSD under Monell v. New

York City Dept. of Social Services, 436 U.S. 658 (1978), and

its progeny, and they seek to impose liability upon Yontz

under a theory of supervisory liability. | Whether

Defendants are entitled to summary judgment on either

or both of these theories of liability is the subject of the

next two sections of this Expanded Opinion. For present

purposes, it is sufficient to recognize that courts have

held that school districts and supervisory personnel can

be hela liable for the constitutional deprivations visited

upon students by their teachers (in particular, for the

denial of their liberty interest to bodily security and

physical integrity). Doe v. Taylor Independent School Dist.,

15 F.3d 443 (5th Cir. 1994) (en banc); Stoneking v.

Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989), cert.

denied, 493 U.S. 1044 (1990). Indeed, in Maldonado,

supra, the Tenth Circuit, while concluding that school

officials did not have a duty to protect students from

harm, went to great length to distinguish Stoneking, 975

F.2d at 730-31.

C._ Springfield CSD’s contention that it is entitled to

summary judgment because the Plaintiffs cannot establish

the existence of a policy, custom or practice which caused

the alleged injuries.

In Monell, supra, the Supreme Court held that §

1983 did not impose liability on a governmental

subdivision for the constitutional torts of its employees

30a

on ee eS eee

under a respondeat superior theory. Springfield CSD is

such a governmental subdivision. Rather, the Monell

Court concluded that a political subdivision can be liable,

in a § 1983 action, for the constitutional torts committed

by its employees only “when execution of a government’s

policy or custom, whether made by lawmakers or by those

whose edicts or acts may fairly be said to represent

official policy ....”. 436 U.S. at 694. Of course, the policy

or custom must cause, i.e., be the “moving force [behind]

the constitutional violation.” Polk County v. Dodson, 454

U.S. 312, 326 (1981). The Sixth Circuit has said that, in

order for a plaintiff to establish that a governmental

employer is liable under a Monell theory, he or she “must

‘identify the policy, connect the policy to the

[governmental entity] itself and show that the particular

injury was incurred because of the execution of that

policy.’” Garner v. Memphis Police Dept., 8 F.3d 358, 364

(6th Cir. 1993) quoting Coogan v. City of Wixom, 820 F.2d

170, 176 (6th Cir. 1987).

Herein, Plaintiffs allege that Springfield CSD had

“a widespread practice, custom or policy of reckless

indifference to or concealment of instances of known or

suspected physical or emotional abuse by Defendant

Kaech. Administrative personnel, including Defendant

Yontz, had knowledge of and/or acquiesced in this

practice, custom or policy.” Doc. #1 at { 136.

Initially, Springfield CSD argues that it did not

have such a policy.” Springfield CSD contends that,

22 Springfield CSD and this Court use the word “policy” to mean

a general statement which has been officially promulgated by the

decision making body of the governmental entity, with the intention

of controlling future conduct. Monell, 436 U.S. at 690. Thus, a

“policy” must be distinguished from a “custom” or “practice” which

3la

rather than having a policy which would allow employees

to conceal or to acquiesce in instances of child abuse, it

has had a policy, since 1981, which requires suspected

incidents of abuse to be reported.” The plaintiffs have

not produced any evidence of a contrary policy, either

before the 1981 policy was adopted or thereafter. Some

of the incidents of abuse for which Plaintiffs seek to

recover damages may have occurred before the 1981

policy was adopted.” However, the Plaintiffs do not

argue, much less present evidence tending to

demonstrate, that Springfield CSD had a policy

(something that was formally adopted) of tolerating abuse

of students by teachers. Accordingly, the Court

concludes that the question of whether Springfield CSD

had a policy of tolerating Kaech’s abuse of her students

is not a genuine issue of material fact; Springfield CSD

cannot be held liable under Monell on the basis that it had

a policy which caused the alleged constitutional

deprivations by Kaech.

is unwritten and not formally adopted. /d.

23 A copy of that policy is Exhibit 4 to the affidavit of James Frantz,

which is Exhibit B to the motion for summary judgment (Doc. #58).

2% ©Two of the Plaintiffs, Amy Adams and Joshua Kendall, allege that

they were enrolled in Kaech’s classes during the 1980-81 school year,

before the policy was adopted. Doc. # at [J 11 and 18. However,

Kaech taught them in years after the policy was adopted, and the

Plaintiffs do not specifically allege in what year Kaech abused them.

Id. Therefore, it is not certain that any of the alleged abuse for which

recovery is sought in this litigation occurred before the policy was

adopted in 1981. The other Plaintiffs were taught by Kaech long after

the policy was adopted in 1981. The other Plaintiffs were taught by

Kaech long after the policy was adopted. Jd. at {J 12, 14-19.

32a

a ee

Next, Springfield CSD argues that the Plaintiffs do

not have sufficient evidence to establish that a custom or

practice caused the alleged deprivation.” Springfield

CSD argues that, to survive its motion for summary

judgment, the Plaintiffs must present evidence which

raises a genuine issue of material fact as to whether it had

such a custom. Assuming that the existence of the

custom is a genuine issue of material fact, Springfield

CSD’s argument continues, the Plaintiffs must also

present evidence which raises a genuine issue of material

fact as to whether it acted with deliberate indifference to

the constitutional rights of the Plaintiffs when it

established or perpetuated that custom. Plaintiffs, on the

other hand, contend that evidence raising such genuine

issues of material fact exists and that reckless indifference

by Springfield CSD is a sufficient level of fault.

Resolution of these questions requires a two-step analysis,

to wit: 1) identification of the proper legal standard for

fault (deliberate indifference or reckless indifference);

and 2) an application of the correct legal standard to the

evidence before the Court, i.e., to determine whether

there are genuine issues of material fact as to whether

Springfield CSD had a custom of acquiescence in and

tolerance of abuse by Kaech and whether it acted with the

appropriate level of fault in adopting or perpetuating that

25 The Court, as does Springfield CSD, uses the word “custom” to

mean something which, although it has not received formal approval

from the governmental body’s official decision making channels, is so

pervasive that it could be regarded as permanent or well settled.

Monell, 436 U.S. at 691 quoting Adiekes v. S.H. Kress & Co., 398 U.S.

144, 167-68 (1970). The parties use “custom” and “practice”

interchangeably; however, this Court will primarily use the word

“custom.”

33a

policy.”

First, the custom by which the Plaintiffs seek to

impose § 1983 liability upon Springfield CSD is analogous

to the custom which the Supreme Court recognized in

Canton v. Harris, 489 U.S. 378 (1989); therefore, the

degree of fault required to hold Springfield CSD liable

should be same as that which the Supreme Court

concluded was necessary to hold the city of Canton liable.

The Canton Court recognized that a governmental entity

could be liable, in a § 1983 action under Monell, for the

constitutional torts of its employees when the asserted

custom was a failure to train properly its employees.

However, the Canton Court also said:

We hold today that the inadequacy of

police training may serve as the basis for §

1983 liability only where the failure to train

amounts to deliberate indifference to the

rights of persons with whom the police

come into contact.

26 Springfield CSD also argues that the Plaintiffs have not properly

alleged that a custom or practice caused the alleged deprivation. It

contends that Plaintiff was required to allege that it acted with

deliberate indifference rather than merely acting with reckless

indifference, as Plaintiffs have alleged in their complaint. See Doc. #1

at { 186. This case is before the Court on a motion for summary

judgment (by which the evidence supporting the Plaintiffs’ claims can

be tested), rather than a motion to dismiss for failure to state a claim

(by which the adequacy of Plaintiffs’ complaint can be tested). Below,

the Court concludes that deliberate indifference is the proper legal

standard and that the question of whether Springfield CSD acted with

deliberate indifference is a genuine issue of material fact; therefore,

the Court will allow the Plaintiffs to amend their complaint to allege

same.

34a

lt Saag cl EF AB PSI ira iS St Nh Site Sana

Id. At 388 (emphasis added). See also Pembaur v.

Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion

of Brennan, “municipal liability under § 19838 attaches

where - and only where - a deliberate choice to follow a

course of action is made from various alternatives” by the

city’s policy makers); Oklahoma City v. Tuttle, 471 U.S.

808, 823 (1985) (plurality opinion of Rehnquist); Deaton

v. Montgomery County, Ohio, 989 F.2d 885, 889-90 (6th Cir.

1993) (Montgomery County not liable under Monell for

the constitutional deprivation allegedly committed by

employees of the City of Dayton in the absence of proof

that the county acted with deliberate indifference.). cf.

Doe v. Taylor, 15 F.3d at 452-54 (supervisor of teacher

who sexually assaults a student is liable only when he or

she has acted with deliberate indifference). In Canton,

the plaintiff sought to impose liability upon the city

because of the latter’s non-feasance, its failure to

adequately train its employees. Similarly, herein, the

Plaintiffs seek to impose liability on Springfield CSD for

its non-feasance, its indifference to and acquiescence in

the long standing pattern of abuse committed by Kaech.

Therefore, to impose Monell liability upon Springfield

CSD, for the constitutional torts allegedly committed by

Kaech, Plaintiffs must prove that the school district was

deliberately indifferent to the rights of the persons with

whom Kaech was likely to come into contact, i.e., her

students.

Second, construing the evidence before the Court

in the manner most favorable to the Plaintiffs (the non-

moving party), leads to the inescapable conclusion that

the questions of whether Springfield CSD had a custom

of acquiescence in and tolerance of a long-term pattern

of abuse by Kaech, and whether it acted with deliberate

indifference toward the rights of her students in

establishing and perpetuating that custom are genuine

35a

issues of material fact.”” Complaints to officials of the

school district regarding allegations of abuse by Kaech

began as early as 1977, and continued thereafter. The

response of the officials charged by the school district

with resolving such complaints, the principals at

Highlands,” was disbelief and disinterest. For instance,

in her affidavit, Hrinko states that she saw and heard

Kaech abuse a student” and that she reported the

incident to Koerner, who was then the principal at

Highlands. Doc. #79 at Tab 2, 5. Koerner’s response

was that he did not want to hear any complaints about

teachers. Jd. In April, 1980, Sprague told Koerner that

Kaech had abused her daughter. Jd. at Tab 3, { 7.

Koerner told her that he could not believe that one of his

teachers would abuse a student. Jd. During a meeting

which Sprague, Koerner and Kaech attended, Sprague

repeated her allegations of abuse against Kaech, and said

that she was aware that other students had been abused

by Kaech. Jd. at { 8. While repeating his earlier

statement that he could not believe that one of his

teachers could do the things Kaech was alleged to have

done, Koerner begged Sprague not to file any claim

arising out of the alleged incidents and promised to

27 In the following recitation of facts, the Court construes the

evidence before it in the manner most favorable to the Plaintiffs. Of

course, the Court only considers the evidence which it has not

previously stricken (i.e, the Court does not consider: 1) [{ 6 and 7 of

Hrinko’s affidavit; 2) { 8 of Attenweiler’s affidavit; 3) Cresci's affidavit

and reports; 4) the police reports; and 5) Roark’s statement.

28 In their depositions, Robert H. Lehman and Thomas Looby, both

of whom are former Superintendents of Springfield CSD, testified

that complaints against teachers were resolved by their principals.

22 According to Hrinko, Kaech slapped a student so hard that it left

a hand print on his jaw. Doc. #79 at Tab 2, { 3.

36a

PE AE ice FMR Ect A REIN Se BOAT ath a LM vi tr nt te wh tei aa el

monitor Sprague’s daughter to assure that nothing

further was done to her. Id.

This pattern continued after Yontz became

principal at Highlands. For instance, Mary Fager

(“Fager”), the grandmother of one of Kaech’s students,

met with Yontz after her grandson reported being injured

by Kaech for the second time in the period of a few

months. Yontz denied that any abuse had occurred,

telling her that nothing had happened. According to

Fager, Yontz refused to schedule a meeting between the

two of them and Kaech. Similarly, Yontz has

acknowledged that Jane Roark complained to him that

Kaech had bruised her daughter Ginger’s arm. Yontz

spoke to Kaech, who denied bruising Ginger; thereafter,

Yontz did nothing about the incident. In 1990, Shawn

Wilson, the mother of one of Kaech’s students,

complained to Yonw of abuse visited upon her daughter

Brandy by Kaech. Once again, Yontz refused to believe

that one of his teachers would abuse one of her students.

At some time between 1987 and 1989, Penny Sam

complained to Yontz that Kaech had scratched her son

Tommy Robinson with a pencil. Yontz asked Kaech

about the allegation, which she denied; he did not ask

Tommy Robinson about it. In 1991, Carol Armbrust

(“Armbrust”) complained to Yontz that Kaech had

pushed her daughter Melinda out of her desk, injuring

her knee. After Armbrust prepared a formal complaint,

at Yontz’ direction, the latter believed Kaech’s denial.

In sum, there is evidence that numerous

complaints of abuse by Kaech were made to the

principals at Highlands (Koerner and Yontz), the very

people to whom the school district assigned the

responsibility of investigating complaints against teachers.

In each instance, the complaint was ignored, or the

37a

teacher’s denial was believed. There is simply no

evidence that any type of formal, or even informal,

investigation was conducted. Indeed, the evidence is that

no file of complaints regarding allegations of abuse was

maintained. Given this evidence, the jury could find that

Springfield CSD’s acquiescence in and tolerance of abuse

by Kaech was well settled; hence, it had a custom of such

acquiescence and tolerance. Moreover, the jury could

also find that Springfield CSD made a conscious decision

to ignore the safety of its students, in other words, that

the school district was deliberately indifferent toward

their rights. Accordingly, the Court concludes that the

question of whether Springfield CSD can be held liable

under the custom prong of Monell is a genuine issue of

material fact.”

Based upon the foregoing, the Court has ruled

upon this branch of the motion for summary judgment

(Doc. #58) in the following manner, to wit: 1) it has

sustained that motion as it relates to Plaintiffs’ assertion

that a “policy” of Springfield CSD caused their

constitutional deprivations; and 2) it has overruled same

as it relates to Plaintiffs’ allegation that “custom” or

“practice” of Springfield CSD caused their constitutional

deprivations. In addition, the Plaintiffs must file an

amendment to their complaint, within seven (7) calendar

days from date, alleging that Springfield CSD acted with

deliberate indifference to the rights of the Plaintiffs in

perpetuating the custom of acquiescing in and tolerance

30 Springfield CSD also argues that there is no evidence that its

alleged custom caused the constitutional deprivation. The Court does

not agree. Certainly, a fair inference from the evidence is that, by

tolerating the early incidents of abuse the school district caused

Kaech to commit further such incidents.

38a

ve

of the pattern of abuse by Kaech.*!

D.__The argument that Yontz, as a principal of a

Springfield City school, is entitled to summary judgment

because the Plaintiffs have failed to establish that he can

be held liable under a theory of supervisory liability.

Next, the moving Defendants argue that Yontz is

entitled to summary judgment, because the Plaintiffs do

not have sufficient evidence to hold him liable under a

theory of supervisory liability. In Doe v. Taylor, supra, the

Fifth Circuit addressed the question of the liability of a

supervisory school official in a context similar to the

present case:

A supervisory school official can be held

personally liable for a subordinate’s violation of an

elementary or secondary school student’s

constitutional right to bodily integrity in physical

sexual abuse cases if the plaintiff establishes that:

(1) the defendant learned of facts or a pattern of

inappropriate sexual behavior by a subordinate

pointing plainly toward the conclusion that the

subordinate was sexually abusing the student; and

(2) the defendant demonstrated deliberate

indifference toward the constitutional rights of the

student by failing to take action that was obviously

. Necessary to prevent or stop the abuse; and

s1 The Plaintiffs need not file an entire amended complaint; rather,

they need only file a document, indicating which paragraphs of their

complaint are amended and how those paragraphs are amended.

39a

(3) such failure caused a constitutional injury to

the student.

15 F.3d at 454. See also Leach v. Shelby County Sheriff, 891

F.2d 1241 (6th Cir. 1989); Hays v. Jefferson, 668 F.2d 869

(6th Cir.), cert. denied, 459 U.S. 833 (1982). Based upon,

and without repeating, the evidence regarding Yontz,

which is set forth above (in connection with Springfield

CSD’s argument that it cannot be held liable under

Monell), the Court concludes that there is a genuine issue

of material fact as to whether Yontz can be held liable

under a supervisory liability theory. Construing the

evidence in the manner mosi favorable to the Plaintiffs,

Yontz knew of a pattern of abuse by Kaech; however, he

demonstrated deliberate indifference to the

constitutional rights of her students by failing to take the

action which was necessary to stop it. Moreover, by

acquiescing in such abuse, the jury could infer and, thus,

conclude that he was the cause of the constitutional

injuries suffered by Kaech’s students.

Accordingly, the Court overrules the motion for

summary judgment (Doc. #58), as it relates to the

argument that Yontz cannot be held liable under a theory

of supervisory liability.

E. The argument of Springfield CSD and Yontz that they

are entitled to summary judgment because there is no

evidence that either _of them _acted_ intentionally,

deliberately or with gross negligence toward the Plaintiffs.

With this argument, Springfield CSD and Yontz

argue that there is no evidence that either acted with the

requisite level of fault, which they argue must have been,

at a minimum, gross negligence. The Court need not

tarry with this argumen:. In the preceding sections of

40a

this Expanded Opinion, the Court has concluded that, for

liability to attach, each of these Defendants must have

acted with deliberate indifference and that there are

genuine issues of material fact as to whether they acted

with that level or degree of fault. Therefore, the Court

overrules the motion for summary judgment (Doc. #58),

to the extent that Springfield CSD and Yontz argue that

there is no evidence that they acted with the requisite

degree of fault.

F. The ment that Yontz is entitled to summa

judgment on the basis of qualified immunity.

It is axiomatic that the affirmative defense of

qualified immunity protects government officials, such as

Yontz, from liability (and even from being required to

stand trial or otherwise offer a defense), unless the right

the official is alleged to have violated has been clearly

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

Herein, Yontz argues that the right of the Plaintiffs to be

protected from abusive behavior by their teacher was not

and has not been clearly established. The Court agrees

with Yontz that the constitutional right of a student to be

protected from the abusive conduct of his or her teacher

was not, at the time of the events in question, and has not

been, to date, clearly established. Indeed, the Court has

concluded that there is not a special custodial

relationship between school officials and students (see,

supra, at 18-20), such that school officials would be

required to protect students from abuse by teachers;

therefore, such a right does not and cannot exist.

Accordingly, Yontz is entitled to summary judgment, on

the basis of qualified immunity, to the extent that the

Plaintiffs’ § 1983 claim against him is predicated upon

their constitutional right to be protected from abusive

behavior by their teacher. However, the Plaintiffs’ claim

4la

against Yontz is not merely that he failed to protect them

from Kaech’s alleged abuse. Rather, they also seek to

impose supervisory liability upon Yontz for the alleged

constitutional violations visited upon them by Kaech.

Yontz does not argue that he is qualifiedly immune from

the Plaintiffs’ supervisory liability claim. Such an

argument would be without merit, as it cannot be

questioned that the potential liability of a supervisor for

the constitutional torts of the employees he or she

supervises has been clearly established by the Sixth

Circuit. See e.g, Hays v. Jefferson, 668 F.2d 869 (6th Cir.),

cert. denied, 459 U.S. 833 (1982). Therefore, the

doctrine of qualified immunity does not prevent the

imposition of liability on Yontz under a supervisory

liability theory. Accordingly, the Court sustains the

motion for summary judgment (Doc. #58), as it relates to

Yontz’ argument that he is protected by the doctrine of

qualified immunity, but only the extent that Plaintiffs

would impose liability upon him under the theory that

they had a constitutional right to be protected from abuse

by their teacher.

G. Plaintiffs’ entitlement to punitive damages.

Springfield CSD and Yontz argue that even if they

are potentially liable to the Plaintiffs, they are entitled to

summary judgment on the Plaintiffs’ claim for punitive

damages. Without question, Springfield CSD is entitled

s2_ Some of the incidents of abuse may have occurred before January

4, 1982, when the Sixth Circuit announced its decision in Hays. See

Footnote 24, supra. However, the Hays court applied the well settled

principle that a supervisor could be held liable for the constitutional

torts of the employees he or she supervised. The precise issue

decided by the Sixth Circuit in Hays was that the supervisor's

culpability had to be greater than a simple negligence.

42a

to summary judgment on the Plaintiffs’ request for an

award of punitive damages against it. The Supreme

Court has held that, in a § 1983 action, punitive damages

cannot be awarded against a governmental entity. City of

Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) As to

Yontz, the Court disagrees with the moving Defendants.

The Supreme Court has said that punitive damages are

appropriate in a § 1983 action “when the defendant’s

conduct is motivated by evil motive or intent, or when it

involves reckless or callous indifference to the federally

protected rights of others.” Smith v. Wade, 461 U.S. 30,

56 (1983). In Hill v. Marshall, 962 F.2d 1209 (6th Cir.

19¢.,, the Sixth Circuit applied the test set forth in Smith

and Concluded that “the state of mind that meets the

standard of deliberate indifference is sufficient to meet

the standard for punitive damages.” Jd. at 1217. Herein,

this Court has concluded that there is a genuine issue of

material fact as to whether Yontz acted with deliberate

indifference to the constitutional rights of the Plaintiffs.*°

Accordingly, the Court similarly concludes that there is a

genuine issue of material fact as to whether the Plaintiffs

are entitled to an award of punitive damages against

Yontz. Accordingly, the Court sustains the motion for

summary judgment (Doc. #58), to the extent shat

Springfield CSD seeks summary judgment on Plaintiffs’

request for an award of punitive damages against it, and

overrules that motion to the extent that Yontz seeks

summary judgment on Plaintiffs’ request for an award of

ss Of course, the only constitutional right of the Plaintiffs implicated

by this litigation is a substantive due process right, a liberty interest

to bodily security and physical integrity. While much of the Plaintiffs’

constitutional claim against Yontz survives this ruling on the motion

for summary judgment, the Court has concluded that the Plaintiffs

did not have the right to be protected from abusive conduct by their

teacher.

43a

punitive damages against him.

Based upon the foregoing, the Court has sustained

in part and overruled in part the motion for summary

judgment of Springfield CSD and Yontz (Doc. #58). The

Court has sustained that motion with respect to the

moving Defendants’ argument that they are entitled to

summary judgment on Plaintiffs’ § 1983 claim to the

extent that same is predicated upon a constitutional

obligation to protect them from Kaech’s alleged abuse.

The Court has also sustained that motion with respect to

Springfield CSD’s arguments that it is entitled to

summary judgment to the extent that Plaintiffs’ Monell

claim is predicated upon a “policy” (i.e., a formally

adopted policy), and that it is entitled to summary

judgment on Plaintiffs’ request for an award of punitive

damages against it. Otherwise, the Court has overruled

said motion. Based upon these rulings, all of Plaintiffs

claims remain for trial. However, the Plaintiffs’ claims

(with regard to Counts XII-XIV) have been limited

somewhat by the Court’s ruling on the motion for

summary judgment. First, the Plaintiffs’ § 1983 claims

against Springfield CSD and Yontz cannot proceed under

a theory that Plaintiffs had a constitutional right to be

protected from abuse by Kaech. Rather, with these

claims, Plaintiffs can proceed only under a Monell theory

(against Springfield CSD) and a supervisory liability

theory (against Yontz). Second, the Plaintiffs can proceed

against Springfield CSD only under the “custom” or

“practice” prong of Monell and not under its “policy”

prong. Third, the Plaintiffs cannot recover punitive

damages from Springfield CSD.

ce ne a, ee iat. A atl

[sf

WALTER HERBERT RICE

UNITED STATES

DISTRICT JUDGE

Copies to:

Fay E. Stilz, Esq./Allen P. Grunes, Esq.

Jane H. Walker, Esq./Stanley M. Chesley, Esq.

David C. Greer, Esq.

Nicholas E. Subashi, Esq.

David A. Weaver, Esq.

45a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AMY D. ADAMS, et al.

)

)

Plaintiffs, )

)

v. ) Case No.

) C-3-92-157

BEVERLY KAECH, etal. )

) JUDGE WALTER

Defendants. ) HERBERT RICE

DECISION AND ENTRY REJECTING

YONTZ’ ARGUMENT THAT HE IS

ENTITLED TO SUMMARY JUDGMENT

UNDER NEWLY ASSERTED THEORY OF

QUALIFIED IMMUNITY; DEFENDANT

YONTZ DIRECTED TO FILE NEW

NOTICE OF APPEAL; DECISION AND

ENTRY SUSTAINING PLAINTIFFS’

MOTION TO CERTIFY APPEAL AS

FRIVOLOUS (DOC. # 169); DECISION

AND ENTRY OVERRULING YONTZ’

MOTION TO STAY TRIAL (DOC. #170);

LIMITED STAY ORDERED.

This case arises out of allegations that Defendant

46a

Beverly Kaech (“Kaech”) mistreated some of the students

she taught at Highlands Elementary School

(“Highlands”). Highlands is located in Springfield, Clark

County, Ohio, and is operated by Defendant Springfield

City School District (“Springfield CSD”). Kaech taught

children with hearing disabilities, who were in grades

three, four and five. On April 10, 1992, the Plaintiffs!

initiated this action, in which they allege that Kaech

physically and emotionally abused them. Plaintiffs assert

claims under federal and state law against Kaech,

Springfield CSD and Richard Yontz (“Yontz”), who was

the principal at Highlands.

On July 12, 1994, this Court entered its expanded

opinion (Doc. #160), setting forth its reasoning for

sustaining in part and overruling in part the motion for

summary judgment (Doc. #58) filed by Yontz and

Springfield CSD. In that motion, Yontz had argued, inter

alia, that he was entitled to summary judgment on the

basis of qualified immunity, because the Plaintiffs had

failed to demonstrate that they had a constitutional right

to be protected from allegedly inappropriate teacher

conduct which was clearly established at the time of the

conduct in question.” In ruling on that branch of the

1 The Plaintiffs are Kaech’s former students or parents of such

students.

In his motion for summary judgment, Yontz said:

Counsel knows of no cases in the Supreme

Court, Sixth Circuit, or otherwise, which have held

that the type of conduct which forms the basis of

plaintiffs’ complaint violates a “clearly established”

constitutional right. Quite simply, as previously

discussed in this memorandum, plaintiffs have failed

to demonstrate a constitutional right to be protected

47a

motion for summary judgment, the Court agreed with

Yontz, concluding that such right was not clearly

established. Indeed, the Court concluded that the right

to be protected from allegedly inappropriate teacher

misconduct did not exist. However, the Court noted that

Plaintiffs sought to recover from Yontz under an

alternative theory, to wit: that Yontz was liable for the

Kaech’s constitutional torts under a supervisory liability

theory. In closing its discussion of the qualified immunity

argument, the Court noted, in dicta, that, although Yontz

had not argued that supervisory liability was not clearly

established at the time in question, it was indeed so

established.* However, before making that comment, the

Court did not engage in the analysis which the Supreme

Court required in Anderson v. Creighton, 483 U.S. 635

(1987). In other words, the Court did not determine

whether supervisory liability had been established in the

from allegedly inappropriate teacher conduct.

Doc. #58 at 28 (emphasis added). In the previous discussion referred

to by Yontz, he had relied upon DeShaney v. Winnebago County, 489

U.S. 189 (1989) and its progeny in arguing that he could not be held

liable for failing to protect Plaintiffs’ from Kaech’s conduct (i.e., the

Plaintiffs did not have a constitutional right to such protection).

Thus, the Court construed Yontz’ qualified immunity argument to be

that, even if the Plaintiffs had a constitutional right to such

protection, the right was not clearly established when Kaech’s

allegedly inappropriate conduct occurred. Parenthetically, Kaech’s

name does not appear in Yontz’ discussion of qualified immunity.

s In his motion to stay (Doc. #170), Yontz argues that Plaintiffs did

not assert a supervisory liability claim against him. The Court does

not agree. Count XII of the Plaintiffs’ complaint (Doc. #1) sets forth

such a supervisory liability claim against Yontz. Indeed, in the motion

for summary judgment, Yontz had argued that there was not

sufficient evidence to hold him liable under a supervisory liability

theory. See Doc. #58 at 21-24.

48a

particularized sense with the pertinent facts of this case in

mind.

On July 19, 1994, Yontz filed a notice of appeal,

appealing this Court's decision on that part of the

qualified immunity finding which had denied the motion

for summary judgment on Plaintiffs’ supervisory liability

theory. See Doc. #167. On that same day, Plaintiffs filed

a motion requesting that the Court certify Yontz’ appeal

as frivolous. See Doc. #169. Two days later, on July 21,

1994, Yontz filed a motion seeking to have the Court stay

further discovery and the trial of this litigation.‘ See Doc.

#170. Seemingly, Yontz would have little to appeal (save

the denial of qualified immunity on the supervisory

liability issue), as the Court agreed with him that he was

entitled to qualified immunity on Plaintiffs’ claim that he

violated their constitutional rights by failing to protect

them from Kaech's alleged abuse. However, during the

conference call between the Court and counsel.

conducted on July 21, 1994 (and in his motion to stay),

Yontz explained that his qualified immunity argument

had an additional element, to wit: the initial threshold

issue of whether Kaech’s alleged conduct violated the

Plaintiffs’ constitutional rights which were clearly

established at the time of the alleged conduct. Yontz

would, of course, have the Court answer this question in

the negative. Despite the fact that the Court continues to

believe that Yontz did not rely upon the newly asserted

theory of qualified immunity in the motion for summary

judgment (and thus waived same for purposes of such a

motion), the Court, herein in the interest of

completeness, will address same, and, in addition, will

4 The trial of this litigation is now scheduled to begin on July 26,

1994.

49a

rule on the Plaintiffs’ motion to certify the appeal as

frivolous (Doc. #169) as well as Yontz’ motion to stay

(Doc. #170).

The Plaintiffs claim that Kaech violated their

substantive due process right (under the Fourteenth

Amendment) to bodily security. To determine whether

Yontz is entitled to qualified immunity from this claim,

the Court must first examine the contours of that right.

In Hall v. Tawney,, 621 F.2d 607 (1980), the Fourth

Circuit recognized that students have a substantive due

process right to be free from certain invasions of their

bodily security, by school officials, writing:

In the context of disciplinary corporal

punishment in the public schools, we emphasize

once more that the substantive due process claim

is quite different than a claim of assault and

battery under state tort law. In resolving a state

tort claim, the decision may well turn on whether

“ten licks rather than five” were excessive ... so

that line-drawing this refined may be required.

But substantive due process is concerned with

violations of personal rights of privacy and bodily

security of so different an order of magnitude that

inquiry in a particular case simply need not start at

the level of concern these distinctions imply. As in

the cognata police brutality cases, the substantive

due process inquiry in school corporal

punishment cases must be whether the force

applied caused injury. so severe, was so

disproportionate to the need presented, and was

so inspired by malice or sadism rather than a

merely careless or unwise excess of zeal that it

amounted to a brutal and inhumane abuse of

official power literally shocking to the conscience.

50a

See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973) (Friendly, J.). Not every violation of state

tort and criminal assault laws will be a violation of

this constitutional right, but some of course may.

Id. at 613. In Webb v. McCullough, 828 F.2d 1151, 1158

(6th Cir. 1987), the Sixth Circuit quoted extensively from

and applied Hall. The Fifth Circuit has recognized the

same right, although with a slightly different formulation

of the test used to determine whether the right has been

violated. “Corporal punishment 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.”

Woodard v. Los Fresnos Independent School Dist., 723 F.2d

1243, 1246 (5th Cir. 1984). Accord Ingraham v. Wright,

525 F.2d 909, 916 (5th Cir. 1976) (en banc), affirmed on

other grounds, 430 U.S. 651 (1977).° Indeed, in 1974,

Judge Rubin, of this Court, recognized such a substantive

due process right in the corporal punishment setting and

formulated the test in the same manner as the Fifth

Circuit.’ Sims v. Waln, 388 F.Supp. 543, 549 (S.D. Ohio

1974). Interestingly, Sims involved a challenge to the

corporal punishment policy of the Springfield CSD.

5 In /ngraham, the Supreme Court did not address the question of

whether a student has a substantive due process right to be free from

certain types of abuse. Indeed, that Court denied review of the third

question in the petition for certiorari, which raised that question. 430

U.S. at 659 n. 12.

6 Whether the Court instructs the jury using the formulation of the

test adopted by the Fourth Circuit (approved by the Sixth) or that

adopted by the Fifth Circuit and Judge Rubin is an issue on which the

Court will decide at trial.

5la

Of course, merely because a right exists does not

mean that it has been “clearly established,” a question

which is the touchstone of the qualified immunity

defense. The Sixth Circuit has said that to determine

whether a right is clearly established, the district court

must examine “the decisions of the Supreme Court and

the courts of this circuit.” Poe v. Hayden, 853 F.2d 418,

424 (6th Cir. 1988). See also Lavado v. Keohane, 992 F.2d

601, 606 (6th Cir. 1993) (“‘[A] district court must find

binding precedent by the Supreme Court, its court of

appeals or itself.’” quoting Ohio Civil Serv. Employees Ass'n

v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)). To find

that the substantive due process right upon which the

Plaintiffs rely was clearly established when Kaech engaged

in the conduct in question, this Court need look no

further than Judge Rubin’s decision in Sims. Simply

stated, in 1974, in a case involving the very school district

which is a Defendant herein, Judge Rubin held that

students have a substantive due process right to free from

corporal punishment which is arbitrary, capricious or

wholly unrelated to legitimate state goals, such as

maintaining an atmosphere conducive to learning. 388

F. Supp. at 549. Therefore, the right upon which the

Plaintiffs rely was clearly established in 1982, the year in

which the first incidents of abuse, for which the Plaintiffs

seek to recover, are alleged to have occurred.

The final step in the qualified immunity analysis

requires this Court to decide whether there is a genuine

issue of material fact as to whether Kaech violated that

clearly established right. This Court is compelled to

conclude that said question raises a genuine issue of

material fact. It is axiomatic that the party seeking

summary judgment bears the initial burden of

demonstrating his or her entitlement to same. Boretti v.

Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The

52a

moving party has the “‘burden of showing that the

pleadings, depositions, answers to interrogatories,

admissions and affidavits in the record, construed

favorably to the nonmoving party, do not raise a genuine

issue of material fact for trial.” quoting Gutierrez v. Lynch,

826 F.2d 1534, 1536 (6th Cir. 1987)). In the motion for

summary judgment, Yontz did not cite any evidence

which would demonstrate that Kaech did not violate the

Plaintiffs’ clearly established substantive due process

right. Moreover, “Rule 56 does not impose upon the

district court a duty to sift through the record in search

of evidence to support a party’s opposition to summary

judgment....” Skotak v. Tennaco Resins, Inc., 953 F.2d 909,

915 n. 7 (5th Cir.), cert. denied, 113 S.Ct. 98 (1992). See

also Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th

Cir. 1989), cert. denied, 494 U.S. 1091 (1990); L.S. Heath

& Son, Inc. V. AT&T Information Systems, Inc., 9 F.3d 561

(7th Cir. 1993). Thus, a court is entitled to rely, in

determining whether a genuine issue of material fact

exists (or does not exist) on a particular issue, only upon

those portions of the verified pleadings, depositions,

answers to interrogatories and admissions on file

together with any affidavits submitted, specifically called

to its attention by the parties. Herein, approximately 160

depositions have been filed; this Court is simply not

required to read all of those depositions in an effort to

determine whether the evidence demonstrated the

absence of a genuine issue of material fact. Nevertheless,

the Court has reviewed the depositions of the nine

former students of Kaech who are Plaintiffs (or the

children of Plaintiffs). Based upon the review, the Court

cannot conclude that there is not a genuine issue of

material fact on the issue of whether Kaech violated the

substantive due process rights of her former students (the

Plaintiffs or children of Plaintiffs). The depositions are

inconclusive as to what Kaech did to her students and the

53a

circumstances under which those actions occurred.

Where the depositions are inconclusive, they must be

construed in the light most favorable to the Plaintiffs,

who are the non-moving parties. So construing them,

there certainly exist genuine issues of material fact as to

what, if anything, happened in Kaech’s classroom. Where

the facts of the case cannot be determined before trial,

qualified immunity is unavailable. Brandenburg v. Cureton,

882 F.2d 211, 215-16 (6th Cir. 1989). Indeed, in some of

their depositions, the former students were not even

questioned (or extensively questioned) about the abuse

allegedly visited upon them by Kaech. While the absence

of such evidence at trial will be fatal to these Plaintiffs, on

a motion for summary judgment, it is fatal to Yontz, the

moving party, upon whom the burden of initially

demonstrating the absence of a genuine issue of material

fact rests.’

Based upon the foregoing, the Court concludes

that Yontz is not entitled to summary judgment under his

newly formulated theory of qualified immunity.

Yontz has filed a notice of appeal of this Court’s

ruling on his motion for summary judgment based upon

qualified immunity. As a general rule, immediate appeal

7 To the extent that Yontz supports his new theory with the

Plaintiffs’ complaint, rather than with properly submitted Fed. R. Civ.

P. Rule 56 evidence (in other words, in essence, seeking dismissal of

the complaint rather than summary judgment on the claim asserted

against him therein), the Court cannot agree. The complaint is filed

with unauthenticated and unverified allegations which, if proved,

would allow a jury to find that Kaech violated the Plaintiffs’

substantive due process right by committing violent acts against them

which were wholly unrelated to the need to maintain a learning

environment.

54a

may be taken from a district court’s decision to deny

qualified immunity. Mitchell v. Forsyth, 472 U.S. 511

(1985). Such immediate appeal requires a stay of the

proceedings against the party seeking immunity, pending

the resolution of the appeal. Kennedy v. City of Cleveland,

797 F.2d 297, 299 (6th Cir. 1986). However, under some

circumstances, a district court may make “findings of

frivolousness or waiver” with regard to the appeal, and

proceedings against the party whose claim of immunity

has been denied may continue in the trial court. Yates v.

City of Cleveland, 941 F.2d 444, 448-449 (6th Cir. 1991).°

The Plaintiffs have filed a motion seeking to have this

Court certify Yontz’ notice of appeal as frivolous. See

Doc. #169.

Thus, this Court is faced with two options. Either

Defendant’s trial, scheduled to begin in a matter of days,

is to be stayed pending the resolution of this appeal, or

the appeal is to be certified as frivolous, the notice of

appeal is to be stricken, and trial will proceed. The Court

would first point out that a finding of waiver or

untimeliness would be inappropriate in this matter. The

Court did not file its final, expanded opinion on the

motion for summary judgment, until approximately two

weeks before trial was scheduled to begin. That the

notice of appeal was filed so shortly before the beginning

of trial is not the result of any unreasonably dilatory tactic

8 Defendant argues that the Yates court “did not specifically hold

that a district court may terminate an appeal solely on the grounds of

‘frivolousness.’” Memorandum of Defendant Yontz in Opposition to

Plaintiffs’ Motion for Certification of Appeal as Frivolous at 2-3

(quoting Yates). This Court reads the Court of Appeals’ use of the

disjunctive “or” as permitting a court to make a finding either of

frivolousness or of waiver in deciding to proceed to trial in the face

of a notice of appeal of a denial of qualified immunity.

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on the part of Yontz.

The question is whether this appeal is frivolous.

judge Wiseman of the Middle District of Tennessee

recently had occasion to discuss the standard to be used

in making such a determination. Dickerson v. McClellan,

844 F. Supp. 391, 394-95 (M.D. Tenn. 1994). After

determining that the law is fairly clear that a district court

does have the ability to certify an appeal as frivolous,

Judge Wiseman prefaced his discussion of the standard to

be used by noting that there has been little guidance on

this standard from the Sixth Circuit Court of Appeals, or

from any other Courts of Appeals, for that matter. Jd. at

394.

Judge Wiseman particularly noted that the Sixth

Circuit has stated that summary judgment on qualified

immunity grounds cannot be granted if there are genuine

issues of material fact “‘”involving an issue on which the

question of immunity turns, such that it cannot be

determined before trial whether the defendant did acts

that violate clearly established rights.”"” Jd. at 394

(quoting Rich v. City of Mayfield Heights, 955 F.2d 1092,

1095 (6th Cir. 1992) (quoting, in turn, Poe v. Haydon, 853

F.2d 418, 426 (6th Cir. 1988))). Judge Wiseman

concluded, in Dickerson, that such factual disputes were so

clearly evident that they would necessarily prevent the

Court of Appeals from being able to find qualified

immunity appropriate; accordingly, the appeal was

baseless. Id. at 395-97. On that basis, Judge Wiseman

certified the appeal in that case as frivolous, dismissed the

notice of appeal, and proceeded with the trial. Jd.

While it is true that a district court should certify

an appeal as frivolous only in the rarest of circumstances,

see McMath v. City of Gary, Indiana, 976 F.2d 1026, 1030-

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31 (7th Cir. 1992), this Court finds itself compelled to do

so in this instance, due to the immediately apparent

groundlessness of the appeal.

The branch of the motion for summary judgment,

raising the affirmative defense of qualified immun-y,

contained absolutely no factual development. As

explained above, the legal standard to be applied in

corporal punishment cases has long been clearly

established in this District. The question is whether the

actions complained of run afoul of that standard. As the

movant for summary judgment, it was incumbent upon

Yontz to identify the particular actions that form the basis

of these Plaintiffs’ complaint and, then, to demonstrate

that those actions could not violate constitutional rights

as a matter of law. Yontz has failed to do so.

In his memorandum in response to the motion to

certify the notice of appeal as frivolous, Yontz argues that

it is the Plaintiffs who have failed “to come forward with

specific facts demonstrating that [he] was not entitled to

qualified immunity as required by Rich v. City of Mayfield

Heights, 955 F.2d 1092 (6th Cir. 1992)[.]” Memorandum

of Defendant Yontz is Opposition to Plaintiffs’ Motion

for Certification of Appeal as Frivolous at 34. Yontz

misreads Rich, which states in no uncertain terms that:

“Defendants bear the initial burden of coming forward

with facts to suggest that they were acting within the

scope of their discretionary authority during the incident

in question.” Rich, 955 F.2d at 1095 (emphasis added).

A defendant may not merely assert, “I am a public official

and deserve qualified immunity,” and, by doing so, shift

the burden to the plaintiff to set forth facts. A defendant

seeking qualified immunity must be required to proceed

in one of two ways: either he or she argues that the face

of the complaint does not allege facts sufficient to

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overcome qualified immunity, and, thus, that the

defendant is entitled to judgment on the pleadings, or he

or she presents Rule 56 evidence, on a motion for

summary judgment, demonstrating that the incidents in

question did not involve conduct that violated clearly

established constitutional rights. The complaint in this

action certainly sets forth allegations that may be

construed to describe incidents in which constitutional

rights were violated. Accordingly, it was incumbent upon

Yontz to set forth some evidence that what actually

occurred was not egregious enough to trigger

constitutional liability. Never having set forth the facts of

any of the alleged incidents for the purposes of his

motion seeking qualified immunity (and thus not having

pointed out, as he must, the absence of a genuine issue of

material fact), Yontz is not permitted to shift the burden

onto the Plaintiffs.”

This matter presently stands in a factual vacuum.

The Court of Appeals would be unable to find Yontz

qualifiedly immune for the same reason that this Court

cannot do so -- there simply is not enough information as

to what Kaech did or did not do to the children in her

classes. Analysis of her actions and the circumstances

under which those actions were taken, and the

determination whether those actions went beyond the

constitutionally permissible level of corporal punishment,

must be left to the trier of fact. Yontz has made

absolutely no demonstration why, for example, a finder

9 Ona more basic level, it is the opinion of the Court that Yontz did

not even articulate in his motion seeking qualified immunity any

argument in favor of qualified immunity to the Plaintiffs’ supervisory

liability claim, and it would, therefore, be inherently unfair to place

a burden of production on the Plaintiffs to support a response to an

argument that was not even made in the first place.

58a

PN an Boe

——

of fact could not reasonably conclude that Kaech

slammed her pupils’ faces into their desks in a

constitutionally impermissible manner, as opposed to

concluding that Kaech did not so impact upon the

children’s faces and, in fact, did nothing more than grab

her students’ arms in order to get their attention when

they were misbehaving. A court cannot “make a

determination [as to qualified immunity] if the exact

character of the ‘actions’ that Anderson [v. Creighton, 483

U.S. 635 (1987),] requires the court to consider is

unknown.” Brandenburg, 882 F.2d at 215 (6th Cir. 1989)

(citing Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988)).

Yontz can no more ask the Court of Appeals to

scour the approximately 160 depositions filed in this

matter than it can ask this Court to do so. Because Yontz

has completely failed to develop (a better word might be

“narrow”), for the purposes of seeking qualified

immunity, the facts surrounding the alleged abuse of the

children, the Court of Appeals would have no more basis

to grant qualified immunity than did this Court.

Accordingly, this Court finds that the Defendant’s notice

of appeal is completely baseless, and does certify it as

frivolous.

Based upon the foregoing, the Court sustains

Plaintiffs’ motion to certify the appeal as frivolous (Doc.

#169) and strikes the previously filed notice of appeal.

Furthermore, the Court would state that any notice of

appeal taken from the rulings announced in this decision

would also be frivolous, for the same reasons as stated

above, and would strike any such notice of appeal, as well.

Along with his notice of appeal, Yontz has also moved to

stay these proceedings. See Doc. #170. For the reasons

expressed above, the Court overrules Yontz’ motion to

stay (Doc. #170).

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Trial upon the merits will, therefore, proceed.

However, in the interest of justice and conservation of

judicial resources, the Court will stay proceedings until

9:00 A.M. on Wednesday, July 27, 1994, in order to allow

Yontz the opportunity to request a stay of these

proceedings from the Sixth Circuit. By this action, the

Court does not intend in any way to retract its

determination that the appeal of this or the prior

qualified immunity ruling is frivolous, or its ruling that a

stay of these proceedings would be inappropriate.

L3sf

WALTER HERBERT RICE

UNITED STATES DISTRICT

JUDGE

Copies to:

Fay E. Stils, Esq./Allen F. Grunes, Esq.

Jane H. Walker, Esq./Stanley M. Chesley, Esq.

David C. Greer, Esq./James H. Greer, Esq.

Nicholas E. Subashi, Esq.

David A. Weaver, Esq.

60a

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