# Opposition Brief — Yontz v. Adams

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1005

## Text

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

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———— —" 7 . -
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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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iacraseatiilll

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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Ace Peale alli la Soe hs athe ni alice BONG

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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, un

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1694%3A2. Public record. Not legal advice.