Jennifer Garza v. Lansing Sch. District ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0283p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JENNIFER GARZA, individually and as guardian ad ┐
litem for C.G. on behalf of C.G., │
Plaintiff-Appellant, │
│
> No. 19-1645
v. │
│
│
LANSING SCHOOL DISTRICT; CONNIE NICKSON; │
TRACEY KEATON; MARTIN ALWARDT; YVONNE │
CAAMAL CANUL; SHERYL BACON; EDNA ROBINSON, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:15-cv-01128—Gordon J. Quist, District Judge.
Argued: March 13, 2020
Decided and Filed: August 28, 2020
Before: BOGGS, CLAY, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Todd Boley, LAW OFFICE OF TODD BOLEY, Alameda, California, for
Appellant. Scott L. Mandel, FOSTER SWIFT COLLINS & SMITH, PC, Lansing, Michigan, for
Appellees. ON BRIEF: Beth M. Rivers, Megan A. Bonanni, Channing E. Robinson-Holmes,
PITT MCGEHEE PALMER & RIVERS, P.C., Royal Oak, Michigan, for Appellant. Scott L.
Mandel, Pamela C. Dausman, FOSTER SWIFT COLLINS & SMITH, PC, Lansing, Michigan,
for Appellees.
CLAY, J., delivered the opinion of the court in which GIBBONS, J., joined, and
BOGGS, J., joined in part. BOGGS, J. (pp. 34–35), delivered a separate opinion concurring in
part and dissenting in part.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Jennifer Garza, acting individually and on behalf of her
child, C.G., appeals the district court’s judgment in this 42 U.S.C. § 1983 action against
Defendants Lansing School District (the “District”) and its current or former employees Sheryl
Bacon, Edna Robinson, Martin Alwardt, Yvonne Caamal Canul, and Connie Nickson. This case
arises out of former teacher Lester Duvall’s physical abuse of C.G. Plaintiff alleges that the
individual Defendants bear supervisory liability for Duvall’s abuse because they were
deliberately indifferent to the possibility that Duvall, who had a long history of abusing students,
would also abuse C.G. The district court dismissed Plaintiff’s claims against Defendants Bacon
and Robinson, granted summary judgment to Defendants Alwardt, Caamal Canul, and Nickson,
and denied Plaintiff’s motion to amend her complaint to add an additional claim against the
District. Plaintiff appeals each of these decisions.
For the reasons set forth in this opinion, we REVERSE the district court’s dismissal of
Plaintiff’s claims against Defendants Bacon and Robinson and its grant of summary judgment to
Defendants Alwardt, Caamal Canul, and Nickson, AFFIRM its denial of Plaintiff’s motion to
amend her pleadings, and REMAND for further proceedings consistent with this opinion.
BACKGROUND
In fall 2014, C.G. was a student at Gardner Leadership, Law, and Government Academy
(“Gardner”), a school within the Lansing School District. C.G. has autism spectrum disorder and
attention deficit disorder, and thus participated in the school’s special education program, in
which Lester Duvall taught. On October 7, 2014, Duvall allegedly abused C.G. by throwing him
into furniture and kicking him in response to minor misbehavior. Because Plaintiff alleges that
Defendants could have anticipated this incident based on Duvall’s prior abuse of students, we
begin with an overview of Duvall’s history.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 3
A. Duvall’s History of Misconduct
Throughout Lester Duvall’s time teaching in the District, District employees and
community members repeatedly reported that Duvall had physically abused students. Employees
were trained to report serious teacher misconduct to the District Human Resources Department
(“HR”) or to their immediate supervisor, who would in turn report it to HR. When employees
suspected child abuse, they were also required to file a report with Child Protective Services
(“CPS”) and notify the student’s parents. Upon receiving a report, HR’s responsibility was to
investigate and determine what response was appropriate.
Duvall’s first incidents of abuse reflected in the record took place in November 2003,
when he was working at the Beekman Center (“Beekman”), a District school for students with
special needs. Defendant Sheryl Bacon was principal of Beekman at that time. That month, an
intern reported to her that Duvall had “slammed” a student into a table. (Pl. Ex. 1, R. 112-2 at
PageID #2546.) A few days later, an aide in Duvall’s classroom reported that Duvall had
“[y]anked” a child from a chair by the arm, “slammed” another child into a table, and forcefully
grabbed and squeezed another’s face. (Id. at #2541.) The aide expressed concern that Duvall
would eventually seriously hurt a student. The record does not reflect if or how Bacon
responded to these reports.
In April 2005, multiple teachers reported seeing Duvall slap a student across the face.
This incident was also reported to Bacon, who told a teacher that the child’s parents would be
informed and an incident report created. The record also does not reflect if or how Bacon
actually responded to this incident.
In March 2007, an aide reported that Duvall pushed a student to the floor, grabbed him by
the mouth and yelled at him in order to force him to spit out a piece of candy. The child
screamed and cried, and he was left with bloody scratches on his face. Again, the record does
not reflect if or how Bacon responded to this incident.
In mid-2011, Bacon retired, and Defendant Edna Robinson became principal of
Beekman. Bacon told Robinson prior to her start that Duvall was “a very good teacher,” about
whom she had received no complaints. (Robinson Dep., R. 112-32 at PageID #3248.) She also
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 4
said that she shredded her notes on anyone in the building prior to her departure. 1 Upon
Robinson’s arrival, the school’s union representative presented her with a full envelope of
statements regarding Duvall’s mistreatment of students and women in the building. When
deposed, Robinson explained that she spoke with staff about the allegations, and some
corroborated them, while others did not. She said that she did not have enough evidence to be
sure the incidents had occurred, but sent the statements to HR anyway.2 The record does not
reflect whether Robinson notified CPS or any students’ parents about these incidents or whether
HR undertook any additional investigation.
In April 2012, another Beekman special education teacher, Rezan Ellenwood, wrote to
Robinson reporting multiple instances of abuse by Duvall and alleging that he had harassed her.
Ellenwood stated that Duvall generally physically intimidated students and was excessively
physically rough with them. More specifically, Ellenwood reported seeing Duvall “place his
thumb under [a student’s] jaw line and apply pressure to get her to stop [making] noises.”
(Pl. Ex. 2., R. 112-3 at PageID #2565.) She also saw Duvall “grab” a student by the shirt, “push
him into the wall” and get up “nose to nose” with him. (Id.) Ellenwood explained that she had
previously reported Duvall’s physical aggression toward students to Defendant Bacon, who had
not addressed her report.
After speaking with both Ellenwood and Duvall, Robinson referred the complaint to HR
and requested an investigation by the District’s Director of Public Safety, John Parks. Parks later
noted that Robinson said this was the first complaint she had heard about Duvall. The record
does not reflect whether Robinson also reported these allegations to CPS or any student parents.
Robinson also contacted her supervisor, Defendant Martin Alwardt, the District’s Director of
Special Education, and told him that an investigation was pending. 3 Defendant Yvonne Caamal
1BecauseBacon shredded her notes, the record does not reflect any additional incidents of abuse that might
have been documented in them.
2Itis not clear if these statements are included in the record. Plaintiff submitted a Freedom of Information
Act (“FOIA”) request for all documented allegations of abuse by Duvall, but the only earlier reports apparently
secured were the November 2003, April 2005, and March 2007 complaints previously discussed. These may be the
same statements provided to Robinson in this envelope, or there may be other statements not reflected in the record.
3When deposed, Alwardt said that he first saw Ellenwood’s reports about Duvall years later, in a meeting
with Ellenwood and other District administrators. It is not clear what information Robinson reported to Alwardt at
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 5
Canul, who was the District Superintendent beginning in 2012, likewise received a copy of
Ellenwood’s statement and passed it on to Alwardt for follow-up.
Parks investigated Ellenwood’s allegations that Duvall had harassed her. Regarding her
student abuse allegations, Parks later explained that he asked Duvall if he was abusing students
and that Duvall said no, but that he did not look any further into the incidents Ellenwood alleged
because he had no other evidence of them. Although Robinson claims to have sent the
previously mentioned envelope of reports against Duvall to HR, Parks said that his office had
never received any other reports about Duvall from any source. Parks’ investigative report
acknowledged Ellenwood’s abuse allegations and that, when interviewed, she said that she had
“constantly” reported incidents of abuse to Defendant Bacon, who “refused to do anything about
[them].” (Id. at #2557.) The report did not include any other information on the reported abuse.
Parks gave the report to HR, and later explained that Alwardt was then responsible for reviewing
and evaluating the report and recommending follow-up as appropriate.4 HR informed Robinson
of the results of the investigation and that HR would respond to it. No other action was taken.
In October 2012, Ellenwood wrote to Parks, copying Alwardt. She expressed concern
that her abuse allegations had not been investigated and requested that the investigation be
reopened so that “[her] main, and most significant point (that Mr. Duvall physically mishandled
students at the Beekman Center)” could be addressed. (Pl. Ex. 3, R. 112-4 at PageID #2597.)
The record does not reflect any response to this follow-up complaint.
Later in October 2012, another Beekman aide, Emily Dove, requested to be removed
from Duvall’s classroom after working there for only four days because she was so disturbed by
the abuse she had witnessed in that time. She detailed three incidents. First, when a student
spilled juice, Duvall angrily threw the juice carton at the student. The next day, Duvall
“grabbed” a student by the arm, “YANKED him up,” and “yell[ed] at his face to stop making
this point, but viewing the evidence in the light most favorable to Plaintiff and making reasonable inferences in
Plaintiff’s favor—as we must at this juncture—we assume that he heard about Ellenwood’s allegations of physical
abuse because Robinson says that she told him about the complaint.
4Alwardt asserts that he never received a copy of any investigative report completed by Parks. Again,
viewing the evidence in the light most favorable to Plaintiff and making reasonable inferences in her favor, we infer
that he did receive a copy of these reports as alleged and as Parks’ deposition suggests.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 6
noise.” (Pl. Ex. 4, R. 112-5 at PageID #2637.) The student tried to sit down, but Duvall “yanked
again at his arm” and when the student made more noise, Duvall “push[ed] the student and
yell[ed] at him to stop.” (Id.) Two days later, on October 4, 2012, a student got up from her
chair after being told not to, whereupon Duvall started “yelling very rough,” and “pushing,
shoving, yanking to get the student back to her seat.” (Id.) “[W]hen he got her in her seat[,] he
placed his left hand on her [forehead] and pushed back and placed his right hand at her neck” and
“push[ed] so hard that you could see the muscles in his arm tighten” for about fifteen seconds,
“[t]he entire time while yelling at her to stay sitting and not to get up.” (Id.) The student did not
resist or fight back and “appeared to be in physical distress, because her eyes were bulging out of
her face.” (Id. at #2604.) This student was nonverbal.
Robinson submitted a report on Dove’s statements to Parks, requesting another formal
investigation, and further reported the incident to CPS. She also informed HR and Alwardt, who
also referred the incident to Parks and HR. She then spoke with Duvall, who said that Dove had
lied, but admitted using a pressure hold on a student. Robinson told him not to use force with
students and reminded him that they had already spoken about his “inappropriate hands on
techniques with students.” (Id. at #2613.) Duvall responded that other Beekman administrators
had allowed him to “handle students with behaviors” and that “he was not going to stop what he
was doing.” (Id.) Robinson later relayed a summary of this conversation to Parks and Alwardt.
Duvall was placed on paid administrative leave while the October 4, 2012 incident was
investigated. This time, Parks’ investigative report concluded that Duvall’s actions were
“punitive and in violation of [District policy on] discipline and use of physical force upon
students.”5 (Id. at #2609.)
5That district policy established:
A. Physical restraint is appropriate only when a student is displaying physical behavior that
presents substantial imminent risk of injury to the student or others.
1. The student is demonstrating the intent and the ability to cause injury within a
matter of minutes.
B. Physical restraint should only be employed as a last resort after other methods of de-
escalating a dangerous situation have been attempted without success.
C. Physical restraint should only be employed by staff members who have received specific
district approved crisis intervention training in the use of physical restraint procedures.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 7
Parks’ report also indicated that he had uncovered additional allegations against Duvall,
which should be addressed “due to liability concerns.” (Id.) To start, staff reported that Duvall
had “a habit of refusing students’ request to use the bathroom,” leading in at least one instance to
a student having a bowel movement in his clothes. (Id. at ##2651–52.) Parks next uncovered an
email to Robinson from October 8, 2012, in which an employee of the Community Mental
Health Authority (“CMH”) reported the following incidents. First, in a 2010 meeting, Duvall
told CMH that if a student became “too loud” while in the pool, “he dunks her head under water
([because] she hates the water).” (Id. at #2654.) In March 2011, a student returned from school
with bruises and scratches, which she said were inflicted by Duvall. In April 2011, another
student said that a “Ms. Reno” had touched her breasts and private areas, later identifying “Ms.
Reno” as Duvall. (Id.) In May 2011, another student came home with an abrasion on their
cheek, saying Duvall did it. Parks also attached a follow-up letter from October 10, 2012, in
which CMH requested that a student not be placed in Duvall’s classroom based on his repeated
use of “physical force, control tactics and verbal threats” and indicated that numerous instances
of Duvall’s suspected abuse had been brought to the attention of protective services, Bacon and
Robinson, and the Lansing Police Department. Parks did not receive authorization to investigate
these allegations.
Upon receiving CMH’s complaints, Robinson met with Duvall and passed them along to
Defendant Alwardt. On October 12, 2012, an employee from Mid-Michigan Guardianship
Services wrote to Robinson, copying Alwardt and Caamal Canul, to express support for CMH’s
concerns. The employee requested that a student not be placed in Duvall’s classroom, a request
1. Other school personnel may employ physical restraint procedures only in rare and
clearly unavoidable emergency circumstances when fully trained school personnel
are not immediately available. Untrained staff should request assistance from trained
staff as soon as possible.
2. A physical restraint of a student should be conducted in a manner consistent with the
techniques prescribed in the District approved crisis intervention training
program. . . .
H. For students with disabilities, the use of physical restraint should not be included in a
student’s IEP, or Behavior Intervention Plan. . . .
E. Restraint should never be used as a punishment, or to force compliance with staff
commands.
(Pl. Ex. 5, R. 112-6 at PageID ##2661–62.) Duvall had not received training on how to use restraints. There were
six exceptions to this policy, none of which applied in this incident.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 8
Alwardt later confirmed that multiple parents and court-appointed guardians had also made. On
October 16, 2012, Alwardt received another letter from CMH requesting additional investigation
into Duvall’s conduct. CMH noted that the non-verbal student who Duvall had choked had
previously been removed from his classroom based on allegations of abuse that had been
reported to protective services, the police, and Bacon. CMH further noted that it had not
received word about the October 4 incident, nor had the incident been reported to protective
services or the student’s guardian, as required by law. In the same letter, CMH reported that a
student had recently returned from Beekman with bruises on his neck, that Beekman had not
responded to his guardian’s request for information about the bruises, and that Robinson had not
reported the bruises to CPS.
When deposed, Alwardt explained that he referred CMH’s complaints to HR. He said
that he met with CMH representatives and looked for documentation on the allegations, but did
not find any. The record does not reflect whether any additional investigation took place.
Following the October incidents, Alwardt said in his deposition, he recommended that
Duvall be suspended and required to take anger management training. Initially, Duvall was
suspended for three days without pay. The District later reduced this suspension from three days
to one day, with an agreement that if Duvall was not disciplined for similar conduct before the
end of the 2013–2014 school year, it would be further reduced to “a formal counseling
statement.” (Pl. Ex. 7, R. 112-8 at PageID #2672.) When deposed, Duvall said that the
suspension had ultimately been reduced to a letter of reprimand. Alwardt said in his deposition
that he also told Duvall that this conduct would not be tolerated, reminded him of the District’s
restraint policies, and ordered him to take additional Crisis Prevention Intervention training.
Duvall himself said that Alwardt never discussed any complaints with him prior to the incident
with C.G., but instead actually chastised him twice while he was at Gardner for failing to use
physical restraints.
At some point during her tenure at Beekman, Robinson spoke with Alwardt about a
separate report from a parent whose child had bruising apparently inflicted by Duvall. Upon
receiving the parent’s complaint, Robinson conducted her own building-level investigation, and
met with Duvall, the parent, and the student. Robinson’s investigation was “inconclusive,” and
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 9
she did not send her internal report about this incident to anyone. (Robinson Dep., R. 112-32 at
PageID #3246.) She, like Bacon, shredded her notes upon her later retirement.
Following the “firestorm” of complaints CMH made about Duvall, Alwardt transferred
Duvall from Beekman to Gardner beginning in the 2013–2014 school year. (Alwardt Dep., R.
112-24 at PageID ##2896–98.) Before Duvall started at Gardner, Alwardt reached out to
Defendant Connie Nickson, who was the principal at Gardner. Alwardt says he told Nickson
that Duvall had been accused of physical abuse, but that the District “had no documentation, no
witnesses, no statements, nothing in the HR file” to support these allegations, and that
“[e]verybody else says he’s a good teacher.” (Id. at #2890.) Nickson did not ask for details
about those incidents.
Duvall’s abuse continued at Gardner. In February 2014, Duvall’s assistant reported that
when a student became unruly, Duvall grabbed her by the arms and threw her ten feet across the
room into the corner of a bookcase, leaving her with large bruises on her arms. (Pl. Ex. 12, R.
112-13 at PageID #2719.) The assistant stated that Duvall had thrown this student several times
previously, was violent with other students, “brag[ged] about the mishandling” of a student, and
generally “ha[d] an anger issue.” (Id.) A student witness also stated that Duvall had thrown the
student to the floor “[a] lot of times,” and that Duvall had also thrown him to the floor before.
(Id.) Nickson informed HR about this incident. A District employee investigated and concluded
that although two witnesses agreed that Duvall had thrown the student, and although there were
indeed bruises on the student’s arms, because it was “not known whether [the student] clearly
understands the difference between being legitimately restrained and ‘thrown,”’ the investigation
was “inconclusive.” (Id. at ##2722–23.) When deposed, Alwardt stated that in response to this
incident, he recommended that HR monitor Duvall closely, but he could not confirm whether it
did. Nickson did not take further action, later explaining that because “HR cleared him to
continue to work, I assumed that he was okay to work.” (Nickson Dep., R. 112-30 at PageID
#3179.)
In May 2014, a student was pulled from Duvall’s classroom because her mother
perceived it to be an unsafe environment. That same month, Nickson evaluated Duvall’s
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 10
performance for the year. She gave him a perfect score in classroom management and
recommended that his employment be continued.
In August 2014, Ellenwood again renewed her complaints about Duvall’s conduct to
District administrators. In a meeting with Defendant Alwardt and other District executives, she
provided them with a timeline of the incidents she witnessed, her reports, and the actions—or
lack thereof—taken by the District.
B. Duvall’s Abuse of C.G.
This brings us, finally, to Duvall’s abuse of C.G. On October 7, 2014, while in class with
Duvall, C.G. asked to sharpen his pencil. Duvall said no, but C.G. proceeded to sharpen his
pencil anyway. C.G. explained afterwards that Duvall then “grabbed my arm and threw me
down on the floor.” (C.G. Dep., R. 112-26 at PageID #3023.) Duvall next “threw [C.G.] across
the room.” (Id.) C.G. hit a bookshelf, the bottom part of which broke upon impact. His head hit
a trash can, which dented. At some point during this encounter, C.G. kicked at Duvall, crying
out “Leave me alone,” and “Get away from me.” (Pl. Ex. 17, R. 112-18 at PageID #2793; C.G.
Dep., R. 112-26 at PageID ##3023–24.)6 C.G. suggests that Duvall kicked him back. Duvall
later stated that he “‘pushed’ [C.G.] to the floor” to prevent him from “run[ning] around the
classroom and using a pencil in a threatening manner.” (Pl. Ex. 17, R. 112-18 at PageID #2796.)
Following the incident, administrators asked Duvall to leave the building, contacted
C.G.’s parents and HR, and placed Duvall on administrative leave. Upon investigation, District
employees concluded that Duvall had thrown C.G. into a bookcase, leaving him with “extreme
bruising” in multiple places. (Id. at #2804.) The investigation found no evidence to suggest
C.G. required a physical intervention and that, even if he had, Duvall’s conduct did not reflect a
permissible intervention under any circumstances. The District reported the incident to the
Lansing Police Department, which did its own investigation and charged Duvall with fourth
6Defendants’ account of the incident, drawn from what C.G. allegedly told the school social worker,
suggests that Duvall only threw C.G. to the ground once and does not mention him hitting either the bookcase or the
trash can. Once again, we view the facts in the light most favorable to Plaintiff, which is corroborated by witness
accounts.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 11
degree child abuse. Duvall did not return to teaching and later resigned pursuant to an agreement
with the District.
On November 2, 2015, Plaintiff filed her complaint with the district court. Plaintiff
asserted, among other things, that Defendants Bacon, Robinson, Alwardt, Caamal Canul, and
Nickson bore supervisory liability for Duvall’s violation of C.G.’s right to bodily integrity under
the Due Process Clause. The district court dismissed Plaintiff’s claims against Bacon and
Robinson in June 2016. In June 2017, Plaintiff filed a motion to amend the pleadings to add a
claim against the District pursuant to Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 694 (1978). The district court denied this motion and subsequently granted
summary judgment to Alwardt, Caamal Canul, and Nickson.
This timely appeal followed.
DISCUSSION
I. Supervisory Liability Claims
On appeal, the parties do not dispute that Duvall’s conduct violated C.G.’s rights under
the Due Process Clause of the Fourteenth Amendment. Instead, they disagree as to whether the
individual Defendants can be held liable for that violation as supervisors.
In order to succeed on a supervisory liability claim, Plaintiff must show that “a
supervisory official at least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984); see also 42 U.S.C. § 1983 (holding liable any state actor who “subjects, or
causes [a person] to be subjected” to a constitutional violation). While a supervisor must have
engaged in “some ‘active unconstitutional behavior,’” that behavior need not be “‘active’ in the
sense that the supervisor must have physically put his hands on the injured party or even
physically been present at the time of the constitutional violation.” Peatross v. City of Memphis,
818 F.3d 233, 242–43 (6th Cir. 2016) (citations omitted) (quoting Bass v. Robinson, 167 F.3d
1041, 1048 (6th Cir. 1999)).
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 12
A defendant may “knowingly acquiesce[] in the unconstitutional conduct of his
subordinates through the execution of his job functions,” id. at 242, including by failing to take
precautions against likely violations. Thus, in assessing whether the director of a police
department was liable for his officers’ use of excessive force, we denied qualified immunity
based on allegations that he “failed to train and supervise the officers to avoid the use of
excessive force, failed to investigate the allegations of excessive force properly, and attempted to
cover-up the unconstitutional conduct of his subordinates by exonerating the officers in an effort
to escape liability.” Id. at 243; see also id. (noting also that the defendant had previously
acknowledged a need to review and improve the disciplinary process, but had not undertaken
review or improvements). Similarly, in discussing a Title IX claim in the school context,7 this
Court has explained:
[W]here a school district has knowledge that its remedial action is inadequate and
ineffective, it is required to take reasonable action in light of those circumstances
to eliminate the behavior. Where a school district has actual knowledge that its
efforts to remediate are ineffective, and it continues to use those same methods to
no avail, such district has failed to act reasonably in light of the known
circumstances.
Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 261 (6th Cir. 2000). This same reasoning
applies here—where a defendant has knowledge that the methods she has used to address
instances of abuse are ineffective, she does not take adequate precautions by simply continuing
to use those methods.
However, a defendant may not be found to bear supervisory liability based on mere
negligence:
[I]t is not enough for the plaintiff to show that the defendant supervisors were
sloppy, reckless or negligent in the performance of their duties. Rather . . . “[a]
plaintiff must show that, in light of the information the defendants possessed, the
teacher who engaged in . . . abuse showed a strong likelihood that he would
attempt to . . . abuse other students, such that the failure to take adequate
precautions amounted to deliberate indifference to the constitutional rights of
students.”
7The Supreme Court has explained that the standards for deliberate indifference under Title IX and § 1983
are comparable. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290–91 (1998); accord Klemencic v. Ohio
State Univ., 263 F.3d 504, 510 (6th Cir. 2001).
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 13
Doe ex rel. Doe v. City of Roseville, 296 F.3d 431, 439 (6th Cir. 2002) (third alteration in
original) (quoting Doe v. Claiborne County, 103 F.3d 495, 513 (6th Cir. 1996)). “The likelihood
of future harm may depend upon a showing that [a] supervisor ‘was confronted with a
widespread pattern of constitutional violations,’ not merely isolated or ‘sporadic’ incidents.”
Howard v. Knox County, 695 F. App’x 107, 113–14 (6th Cir. 2017) (quoting Doe v. Warren
Consolidated Sch., 93 F. App’x 812, 821–22 (6th Cir. 2004)).
With this foundation laid, we turn to assess Plaintiff’s supervisory liability claims,
beginning with the claims against Defendants Bacon and Robinson.
A. Dismissal of Claims Against Defendants Bacon and Robinson
Plaintiff alleges in her complaint that Bacon and Robinson are liable for Duvall’s
violation of C.G.’s rights because, as principals of the Beekman Center while Duvall taught
there, they received and inadequately responded to multiple complaints that Duvall was
physically abusing students. The district court dismissed Plaintiff’s claims, finding that “[a]ny
action or inaction by Bacon and Robinson occurred years before the events at issue in this case,
and neither of those defendants had any supervisory authority over Duvall at the time that he
allegedly abused C.G.” (Op., R. 34 at PageID #491.) On appeal, Plaintiff argues that these are
not valid bases for dismissal.
Taking into account the circumstances involved in this case, we conclude that a lapse of
time between a defendant’s deliberately indifferent conduct and a plaintiff’s injury does not
necessarily preclude that defendant’s supervisory liability—at least where the defendant had
ample notice of the supervisee’s likelihood of continuing violations, and the passage of time was
not so great as to erase the connection between the supervisor’s conduct and the student’s
subsequent abuse. We note that Plaintiff’s claims do not present a statute of limitations issue, as
she pursued them promptly after C.G.’s injury. In the instant case, the success of these claims
instead turns on whether Plaintiff can show that Defendants actually and proximately caused
C.G.’s injury, despite the time lapse between their alleged misconduct and Duvall’s abuse of
C.G. For the reasons that follow, given the specific facts of this case and for the purposes of a
motion to dismiss, Plaintiff has sufficiently shown that Defendants’ alleged failure to carry out
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 14
their duties to report and investigate student abuse caused C.G.’s subsequent abuse.
Accordingly, we reverse the district court’s dismissal of Plaintiff’s claims against Bacon and
Robinson.
We review the grant of a motion to dismiss de novo. Mezibov v. Allen, 411 F.3d 712, 716
(6th Cir. 2005). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible only when “the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged,” thus
raising “more than a sheer possibility that a defendant has acted unlawfully.” Id. In reviewing
the disposition of a motion to dismiss, this Court construes the complaint in the light most
favorable to the plaintiff, accepts all well-pleaded factual allegations as true, and draws all
reasonable inferences in her favor. Cahoo v. SAS Analytics, Inc., 912 F.3d 887, 897 (6th Cir.
2019).
We must first contend with the district court’s two grounds for dismissing Plaintiff’s
claims against Bacon and Robinson. Neither justifies dismissal. First, the simple fact that Bacon
and Robinson’s actions took place in years prior to Duvall’s abuse of C.G. does not necessarily
defeat Plaintiff’s claims against them, which are not barred by the statute of limitations. 8
Regarding the second ground, Plaintiff’s claims also are not barred by the fact that Bacon and
Robinson did not have “any supervisory authority over Duvall at the time that he allegedly
abused C.G.” (See Op., R. 34 at PageID #491.) Just as a party need not have “been present at
the time of the constitutional violation” in order to be found supervisorily liable, Peatross,
818 F.3d at 242, they need not have current supervisory authority over the alleged violator. If
8In § 1983 cases, “state law determines which statute of limitations applies,” while “federal law determines
when the statutory period begins to run.” Harrison v. Michigan, 722 F.3d 768, 772–73 (6th Cir. 2013). Because
§ 1983 actions “are best characterized as personal injury actions,” federal courts apply the statute of limitations
governing personal injury actions in the state where the action was brought. Wilson v. Garcia, 471 U.S. 261, 280
(1985); see also id. at 275–76; Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007). Thus, § 1983 claims brought
in Michigan are subject to its three-year statute of limitations. See Mich. Comp. Laws § 600.5805(2). The statutory
period begins to run “when the plaintiff knows or has reason to know that the act providing the basis of his or her
injury has occurred.” Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996). Accordingly, the earliest that Plaintiff’s
statute of limitations period could have begun to run is October 7, 2014, the day C.G. was injured by Duvall.
Plaintiff filed her complaint on November 2, 2015, well within the three-year statute of limitations.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 15
this were not the case, parties would become effectively immune from supervisory liability
immediately upon leaving the relevant position of authority, even if a violation occurs just days
later. This is not a logical result—if a supervisor has encouraged a violator’s misconduct, the
effects of that encouragement do not cease at the moment of the supervisor’s departure.
Moreover, this would encourage individuals to avoid liability for their supervisee’s constitutional
violations not by responding to them adequately, but by passing the supervisee down the line to a
different supervisor—or, more relevantly, by simply transferring the supervisee to another
school.
Instead, we ask whether Bacon and Robinson acted in a manner demonstrating deliberate
indifference to the likelihood of Duvall’s future abuse and, if so, whether their deliberately
indifferent conduct caused his violation of C.G.’s rights. See id. (explaining that there must be
“a causal connection between the defendant’s wrongful conduct and the violation alleged” in
order to find that a defendant bears supervisory liability under § 1983). As we have explained
when discussing causation in the scope of employment discrimination and retaliation actions,
“[a]lthough temporal proximity . . . is relevant to the question of whether there exists a causal
connection” between two events, it is not dispositive. Davis v. Rich Prods. Corp., 11 F. App’x
441, 445 (6th Cir. 2001); accord, e.g., Dixon v. Gonzales, 481 F.3d 324, 335 (6th Cir. 2007)
(explaining that “a mere lapse in time between” two events “does not inevitably foreclose a
finding of causality” (citing with approval Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,
177 (3d Cir. 1997) (“It is important to emphasize that it is causation, not temporal proximity
itself, that is an element of plaintiff’s prima facie case . . . .”))).
Thus, we must consider whether Defendants’ conduct is a cause in fact and a proximate
cause of C.G.’s injury. See, e.g., Powers v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d 592,
608 (6th Cir. 2007). “Cause in fact is typically assessed using the ‘but for’ test, which requires
us to imagine whether the harm would have occurred if the defendant had behaved other than
[she] did.” Id. “[C]ourts have framed the § 1983 proximate-cause question as a matter of
foreseeability, asking whether it was reasonably foreseeable that the complained of harm would
befall the § 1983 plaintiff as a result of the defendant’s conduct.” Id. at 609. Foreseeability
overlaps with the concept of “directness,” which proximate cause also requires, since “[i]n most
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 16
cases the more directly related an outcome is to an underlying action, the more likely that the
outcome will have been foreseeable, and vice versa.” Crosby v. Twitter, Inc., 921 F.3d 617, 624
(6th Cir. 2019) (quoting Kemper v. Deutsche Bank AG, 911 F.3d 383, 392 (6th Cir. 2018)).
“[S]ince ‘we presume that general allegations embrace those specific facts . . . necessary to
support the claim,’ . . . causal weaknesses will more often be fodder for a summary-judgment
motion under Rule 56 than a motion to dismiss under Rule 12(b)(6).” Trollinger v. Tyson Foods,
Inc., 370 F.3d 602, 615 (6th Cir. 2004) (quoting NOW v. Scheidler, 510 U.S. 249, 256 (1994)).
We turn, then, to Plaintiff’s specific claims against Bacon and Robinson.
1. Defendant Sheryl Bacon
In her complaint, Plaintiff alleges that Bacon received reports that Duvall had slammed
multiple students into tables and yanked students out of their seats in November 2003; that
Duvall had slapped a student in April 2005; that he had pushed a child to the floor and scratched
the child’s face in March 2007; and that since 2004, he had slapped students, grabbed students by
the neck, dragged students around the room, and squeezed students’ faces. Beyond these
specific reports, Plaintiff alleges that in 2010, Bacon received three to four additional reports that
Duvall had been overly physical with students. Together, these reports represented
approximately ten individual alleged instances of abuse, making them sufficiently consistent and
numerous to plausibly allege that Bacon possessed information showing Duvall’s strong
likelihood of re-offense.
Confronted with this information, Plaintiff alleges, Bacon took no action to report or
investigate allegations of abuse. She further complained that Bacon shredded her notes detailing
reports against Duvall and actually threatened one individual with termination if she continued to
make reports, thereby actively concealing Duvall’s history. These allegations plausibly allege
that, knowing about Duvall’s history, Bacon failed to take adequate precautions to address the
possibility of future abuse, Roseville, 296 F.3d at 439, and thus approved or acquiesced in this
conduct, Bellamy, 729 F.2d at 241.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 17
Defendants argue that Plaintiff’s claims against Bacon are similar to those that this Court
dealt within in Doe ex rel. Doe v. City of Roseville and Doe v. Claiborne County, and we should
therefore affirm. But as we explained in Howard v. Knox County,
In Claiborne County, we explicitly held that three supervisor-defendants carried
out their statutory duty to supervise and report acts of misconduct, including by
reporting allegations of sexual abuse to the appropriate child-welfare agency,
removing the accused teacher from student contact during the pendency of the
investigation, supervising later contact with students, and determining that the
teacher in question had been “exonerated” of all previous charges. In Doe v. City
of Roseville, we found that one of the supervisors filed a report with the child-
welfare agency and believed that the abuse might be occurring at home, whereas
the other supervisor did not become aware of a teacher’s history of sexual
misconduct until after the police launched an investigation.
695 F. App’x at 116 (citations omitted) (citing Claiborne County, 103 F.3d at 513; Roseville, 296
F.3d at 441). Unlike the defendants in Claiborne County and Roseville, Bacon allegedly took no
action at all, despite receiving multiple complaints that made her aware of Duvall’s
misconduct—a clear failure to adequately respond, as her position required her to do.
Moreover, for the purposes of a motion to dismiss, these allegations suffice to suggest
that Bacon’s conduct caused C.G.’s injuries. Considering foreseeability, it is clearly foreseeable
that if a teacher’s ongoing physical abuse of students is not responded to, that teacher will
continue to physically abuse students. Regarding directness, had Bacon reported and
investigated the allegations against Duvall, some might have been found substantiated and
sufficiently serious to warrant disciplinary action or termination. Alternatively, a response from
Bacon might have discouraged Duvall from continuing to use physical force against students.
Beyond Duvall’s own decision to abuse students, there is apparently no intervening act in this
chain of causation, and the causation is thus sufficiently direct. To be sure, the length of time
between Defendant Bacon’s alleged failures and C.G.’s abuse suggests that Defendants may be
able to defeat Plaintiff’s allegations in the end. For instance, Defendants may identify an
intervening cause that terminated the chain of direct causation between Bacon’s conduct and
Duvall’s abuse or that made it impossible for Defendant Bacon to foresee Duvall’s continued
abuse. See, e.g., Claiborne County, 103 F.3d at 502, 513 (affirming the dismissal of a
supervisory liability claim against a superintendent who participated in a decision to remove an
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 18
allegedly abusive teacher from student contact, as the school board subsequently decided to
rehire the teacher after the superintendent left his position). But, especially since Defendants
have not argued that point, this question is best left to the court on summary judgment or to the
ultimate factfinders. Thus, at this stage, Plaintiff’s claim against Bacon stands, and the district
court’s dismissal of it is reversed.
The partial dissent suggests that Plaintiff’s complaint describes only three specific
instances of alleged misconduct that were reported to Bacon. But reading the complaint in the
light most favorable to Plaintiff and making all reasonable inferences in her favor, as we must,
Cahoo, 912 F.3d at 897, it alleges far more than that. The reports it contends that Bacon
received in November 2003, April 2005, and March 2007 together identified instances in which
Duvall yanked students out of their seats, force-fed students, slammed multiple students into
tables, slapped a student, and pushed a student to the floor to force candy out of his mouth. (First
Am. Compl., R. 15 at Page ID ##188–89.) Construing the complaint in Plaintiff’s favor, these
each constitute separate instances of abuse, even if they were reported together. Moreover, the
complaint additionally alleges that beginning in 2004, a paraprofessional “timely reported to
Bacon” instances of abuse including “slapping and squeezing students[,] grabbing students by
the neck, dragging students around the room, [and] squeezing students’ faces.” (Id. at #191.)
Again, viewed in Plaintiff’s favor, this constitutes several more instances of abuse. Finally, the
complaint says that in early 2010, “another teacher reported to Principal Bacon on three to four
occasions that Duvall was overly physical with students.” (Id. at #189.) While this allegation
may be insufficiently specific on its own, it also bolsters Plaintiff’s allegations against Duvall.
Altogether, viewed in the light most favorable to Plaintiff, we think these allegations detail
sufficiently specific and sufficiently numerous instances of Duvall’s abuse to put Bacon on
notice of the likelihood that Duvall would abuse students in the future. To be sure, there are
some overlapping details in the reports the complaint discusses, suggesting that they may in fact
describe the same instances of misconduct. However, assuming as much at this stage would run
counter to our duty to view the facts alleged in the light most favorable to Plaintiff and to make
all reasonable inferences in her favor.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 19
The partial dissent goes on to consider documents in the record which it suggests “do not
always support . . . that these instances were reported to Bacon.” But the documents that it
discusses were not before the district court at the time that it considered Bacon’s motion to
dismiss, and so we cannot consider them in reviewing that dismissal. While those documents
may be considered at the motion for summary judgment or trial phases, they do not provide
reason to affirm the district court’s dismissal.
2. Defendant Edna Robinson
Turning then to Plaintiff’s claim against Robinson, Plaintiff alleges that Robinson had
received complaints that, in October 2012, Duvall threw a drink carton at a student, yanked
another out of her chair, squeezed and shook a student by the head and neck, and allowed
another to defecate in his clothing rather than permit him go to the bathroom, as well as
complaints that he threw a student into a bookcase in February 2014 and that he had done this
several times before. Beyond this, Plaintiff alleges that an aide asked to be removed from
Duvall’s classroom because of abuse between 2010 and 2011 and that the school was asked not
to place a student in Duvall’s classroom based on reported abuse in October 2012. These
represent several independent reports of abuse over a consolidated period of time leading up to
the incident with C.G., a sufficiently widespread pattern to make Robinson aware of Duvall’s
likely future abuse.
Plaintiff further contends that, although Duvall was investigated and suspended for three
days after grabbing a student by the neck and shaking her, Robinson failed to notify law
enforcement, Protective Services, or victim guardians about this abuse. And Plaintiff alleges that
Robinson failed to take any action in response to the other reports.9 This plausibly suggests that
Robinson failed to take adequate precautions in the face of a widespread pattern of violations.
Roseville, 296 F.3d at 439.
9We note that some of these allegations may be undermined by evidence entered into the record after
Robinson’s dismissal, which was secured in discovery on Plaintiff’s claims against Defendants Alwardt, Caamal
Canul, and Nickson. However, in reviewing the district court’s grant of a motion to dismiss, this Court considers the
sufficiency of the facts pleaded by the plaintiff, not the facts later discovered. Had Plaintiff been allowed to
continue her claim against Robinson, she might also have uncovered additional evidence that would have bolstered
her case against Robinson at summary judgment.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 20
Again, unlike the defendants in Claiborne County, Robinson allegedly let incidents go
altogether uninvestigated or unaddressed, and, again unlike the defendants there, apparently
never thought the allegations against Duvall unfounded or already dismissed. See 103 F.3d at501–02, 513. And unlike the defendants in Roseville, Robinson allegedly never reported any
abuse to child welfare, despite knowing of multiple instances of abuse, and never undertook
investigations of multiple other incidents. See 296 F.3d at 434–35.
As before, Plaintiff’s allegations are also sufficient to show causation at this stage. Had
Robinson notified the requisite authorities about the choking incident or acted in response to
other allegations against Duvall, those allegations may have been more thoroughly investigated
and responded to, resulting in disciplinary action against or termination of Duvall. This is a
sufficiently direct chain of causation. And again, Defendants present no reason for us to
conclude, at this stage, that Defendant Robinson could not have foreseen C.G.’s injury. Thus,
we also reverse the district court’s dismissal of Plaintiff’s claim against Defendant Robinson.
B. Summary Judgment to Defendants Alwardt, Caamal Canul, and Nickson
We next confront Plaintiff’s claims against Defendants Alwardt, Caamal Canul, and
Nickson. Plaintiff claims that these Defendants are liable for Duvall’s violation of C.G.’s rights
because they were responsible for reporting and responding to Duvall’s misconduct, yet failed to
take adequate precautions to prevent the continuation of that misconduct. The district court
granted summary judgment to Defendants, finding that “[their] conduct was, at best, negligent
and C.G. cannot sustain a section 1983 action against them.” (Op. & Order Den. Summ. J.,
R. 132 at PageID #3469.) It did not reach the question of whether Defendants are entitled to
qualified immunity. For the reasons set forth below, we find that the district court erred in
granting summary judgment to Defendants and that Defendants are not entitled to qualified
immunity.
We review the district court’s grant of summary judgment de novo. Minadeo v. ICI
Paints, 398 F.3d 751, 756 (6th Cir. 2005). Summary judgment is appropriate only when “the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Credibility determinations, the
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 21
weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge . . . ruling on a motion for summary judgment . . . . The evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
1. Defendant Martin Alwardt
Plaintiff alleges that Defendant Alwardt, the District’s Director of Special Education,
demonstrated deliberate indifference to Duvall’s abuse by not ensuring that reports of abuse were
investigated, failing to follow up on the investigations that were conducted, actually chastising
Duvall for failing to physically restrain students, not maintaining documentation of Duvall’s
abuse, and transferring Duvall to a new school despite knowing about his history of abuse. The
evidence suffices to show a genuine issue of material fact as to whether Alwardt bore
supervisory liability for Duvall’s abuse of C.G.
Considering first the information that Alwardt possessed about Duvall’s history of abuse,
Alwardt stated in his deposition that the district files did not include any information on Duvall’s
alleged abuse prior to October 2012, when Dove reported that Duvall had engaged in series of
abusive acts culminating in choking a student. Plaintiff argues that information about this pre-
October 2012 abuse must have been available to Alwardt because it was ultimately produced in
response to their FOIA requests. But regardless of whether Alwardt had information about
Duvall’s abuse prior to October 2012, the evidence supports a reasonable inference that
Defendant Alwardt received enough information about Duvall’s misconduct between October
2012 and October 2014 to demonstrate his strong likelihood of abusing other students. See
Claiborne County, 103 F.3d at 513. Viewed in the light most favorable to Plaintiff, the record
suggests that Alwardt received at least the following complaints during that time: Ellenwood’s
April 2012 report that Duvall pushed a student into the wall, pressed on a student’s jaw to get her
to stop making noises, and generally used physical force with students; Ellenwood’s October
2012 follow-up letter expressing her dissatisfaction that her reports of abuse were not adequately
investigated; the timeline of abuse allegations Ellenwood provided to Alwardt in an August 2014
meeting; Defendant Robinson’s “inconclusive” report on her informal investigation of a parent’s
complaint that Duvall had bruised a student; Dove’s October 2012 complaints of four instances
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 22
of abuse, which culminated in Duvall choking a student; CMH’s “firestorm” of complaints that
Duvall had physically abused students from October 2012; Mid-Michigan Guardianship
Services’ request that a student not be placed in Duvall’s classroom; reports of the February
2014 incident involving Duvall throwing another student into a bookcase; and independent
requests from parents and guardians asking to move their students out of Duvall’s classroom.
Altogether, these complaints represented allegations of approximately fifteen different
instances of abuse by Duvall over a period of three years. Taken together, this is far more than
“isolated” or “sporadic” incidents of abuse. Howard, 695 F. App’x at 113–114. Instead,
Alwardt was confronted with a widespread pattern of alleged abuse, putting him on notice that
Duvall had a strong likelihood of future abuse. Moreover, Plaintiff has raised a genuine issue of
material fact as to whether Alwardt knew that Duvall told Robinson that he would continue to
use force even after the October 4, 2012 incident. This conversation would provide Alwardt
with additional notice that Duvall was likely to abuse students in the future.
The record further presents genuine issues of material fact as to whether, armed with this
knowledge, Alwardt still failed to take adequate precautions to ward off Duvall’s future abuse.
See Claiborne County, 103 F.3d at 513. Alwardt was jointly responsible for training special
education teachers and responding to concerns about their performance. Likewise, according to
Parks, Alwardt was responsible for following up on his investigative reports and authorizing
future investigations. Despite this, Alwardt admitted that he did not even review investigative
reports on Duvall’s abuse, raising a genuine issue as to whether Alwardt fulfilled his duty with
regard to allegations against Duvall. See, e.g., Peatross, 818 F.3d at 243 (denying qualified
immunity in part based on allegations that the defendant failed to supervise officers alleged to
have used excessive force and failed to investigate allegations of excessive force properly).
Likewise, the record presents a genuine issue as to whether Alwardt himself was responsible for
the District’s failure to investigate other complaints made against Duvall, including Ellenwood’s
allegations that Duvall physically abused students and the additional reports of abuse that Parks
uncovered in his investigation of Dove’s 2012 allegations.
While it is evident, as Defendants argue, that Alwardt took some action in response to
instances of Duvall’s alleged abuse, these minimal responses do not eliminate any genuine issue
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 23
of material fact as to whether he demonstrated deliberate indifference to the possibility of Duvall
abusing students in the future. Defendants note that Alwardt reported instances of Duvall’s
misconduct to HR. But even if true, Duvall continued to engage in abuse even after these
reports, and many allegations against Duvall were not addressed even after being reported to HR.
Moreover, if Alwardt himself was responsible for following up on HR reports, the fact that he
simply reported Duvall’s misconduct to HR does not show that he took adequate precautions.
Defendants also argue that Alwardt recommended that Duvall be suspended following the
October 2012 incident. But again, upon Duvall’s return to teaching after his short suspension,
allegations continued to come in against him, providing Alwardt with notice that this “remedial
action [was] inadequate and ineffective.” Vance, 231 F.3d at 261. Despite this, Alwardt
continued to simply refer claims against Duvall to HR, raising a genuine dispute as to whether,
by “continu[ing] to use those same methods to no avail,” he failed to act reasonably. Id.Moreover, the record demonstrates genuine issues as to whether Alwardt actually
responded to Duvall’s conduct in other ways Defendants suggest. For instance, although
Defendants say that Alwardt chastised Duvall following the October 2012 incident and told him
to undergo additional crisis intervention training, Duvall testified that Alwardt never discussed
any complaints about Duvall’s use of force with him prior to the incident with C.G. and had
actually chastised him when he failed to use physical restraints. This raises another genuine
issue as to whether, even when confronted with Duvall’s history, Alwardt encouraged Duvall to
use force more frequently.
Finally, Defendants say that Alwardt had Duvall transferred to Gardner in response to a
“firestorm” of allegations against him. But in Doe v. Warren Consolidated Schools, we
concluded that a defendant’s action to transfer an abusive teacher to a different school, despite
his knowledge that the teacher posed a danger to students, “constituted ‘knowing acquiescence’
to abuse.” 93 F. App’x at 821; accord Howard, 695 F. App’x at 109, 115–16 (finding
defendants had “heightened the risk of harm to the plaintiff” where they had transferred him to
the plaintiff’s class despite knowledge of his history of abuse). Again, viewing the evidence in
Plaintiff’s favor, Alwardt’s decision to place Duvall in a new school, where his colleagues had
less notice of his history, raises a genuine issue as to whether Alwardt was deliberately
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 24
indifferent to the possibility of future abuse. Moreover, the record suggests that upon
transferring Duvall to Gardner, despite having received multiple reports against Duvall and
knowing that he had been suspended based on one, Alwardt assured Gardner’s principal,
Defendant Nickson, that Duvall was known to be a good teacher and that none of the allegations
against him had been substantiated. This, too, arguably further increased Duvall’s risk of
additional abuse.
Defendants again contend that Roseville and Claiborne County require this Court to
affirm the district court’s judgment as to Alwardt. We disagree. The record suggests that
Alwardt was presented with many more specific reports of abuse than were any of the
administrators in Roseville or Claiborne County. See Warren Consolidated Sch., 93 F. App’x at
821 (concluding that Roseville was “easily distinguishable” from the case at hand where the
relevant teacher’s misconduct “was repeated and recent, as opposed to sporadic”); Howard, 695
F. App’x at 114 (denying qualified immunity where “Plaintiffs point[ed] to numerous examples
where parents and students complained to [the defendant] about specific incidents of abuse
witness or otherwise discovered, not just a generalized fear of potential abuse”). Some of these
instances were admitted and others substantiated, providing reason to conclude that Alwardt
knowingly acquiesced in Duvall’s abuse. See Warren Consolidated Sch., 93 F. App’x at 821. In
Claiborne County, on the other hand, the defendant school administrators understood that prior
charges of sexual abuse against a teacher who went on to abuse the plaintiff were “unfounded,”
had resulted in an “exoneration,” or had been dismissed. 103 F.3d at 503.
Likewise, in Roseville, the defendant school administrators did not believe reports of
abuse by the teacher who went on to abuse the plaintiff or, after investigation, found there were
“plausible explanations” for the teacher’s conduct. 296 F.3d at 435. In Warren Consolidated
Schools, we contrasted the defendant’s knowledge with that in Roseville, explaining that the
defendant “knew that [the teacher] posed a danger to young girls,” but nevertheless continued to
expose students to that danger by choosing to transfer the teacher to a school that young girls
attended. 93 F. App’x at 821. Similarly, in this case, Alwardt was presented with approximately
fifteen reports of abuse over a period of three years, and he acknowledged that Duvall presented
a danger to students. (Alwardt Dep., R. 112-24 at PageID #2892 (noting that Alwardt
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 25
recommended to HR that Duvall be closely monitored because of the number of allegations
against him).)
Altogether, we are faced with evidence that raises questions as to whether Alwardt failed
to fulfill his obligation to review investigatory reports, failed to investigate other allegations,
exposed students to additional risk by transferring Duvall to a new school, and actually verbally
encouraged the use of force. This evidence demonstrates a genuine issue of material fact as to
whether Alwardt knowingly acquiesced in or was deliberately indifferent to the possibility that
Duvall would continue his abuse. Plaintiff’s claim against Alwardt thus withstands summary
judgment, and the district court erred in concluding otherwise.
2. Defendant Yvonne Caamal Canul
Plaintiff next argues that Defendant Caamal Canul, the District’s Superintendent,
demonstrated deliberate indifference to Duvall’s abuse by not ensuring that allegations against
Duvall were investigated and addressed and by not following up on complaints she received
about him. Plaintiff has also presented sufficient evidence to withstand summary judgment on
her claim that Caamal Canul bore supervisory liability for Duvall’s abuse of C.G.
Like Alwardt, Caamal Canul possessed information showing that Duvall had a strong
likelihood of abusing other students before October 7, 2014. Viewed in the light most favorable
to Plaintiff, the record suggests that Caamal Canul had been informed of at least the following
allegations against Duvall: Ellenwood’s April 2012 complaint, including allegations that Duvall
had pressed on a student’s face to quiet him or her and pushed another into a wall, in addition to
general allegations of Duvall being physically rough with students; Ellenwood’s subsequent
complaints about the District’s failure to investigate of her abuse reports; Mid-Michigan
Guardianship Services’ letter requesting that a student not be placed in Duvall’s classroom; and
CMH’s October 2012 complaints, which themselves referenced the October 4 incident in which
Duvall choked a student and other instances in which Duvall dunked a student’s head under
water and students returned home bruised. In her deposition, Caamal Canul agreed that she
received multiple complaints against Duvall within the first few months of being superintendent
and that the behavior Duvall allegedly engaged in could prompt termination. Thus, Caamal
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 26
Canul was presented with several specific reports of abuse over a short period of time close to
the C.G. incident. Caamal Canul did not express that she disbelieved any of these reports, found
them unsubstantiated, or altogether dismissed them. Especially given the short period of time
that Caamal Canul had been in the district at that point, these allegations are not “isolated” and
“sporadic,” but appear consistent and widespread. See Howard, 695 F. App’x at 113–14.
Moreover, the record suggests that two of the complaints of which Caamal Canul was
made aware—those from Ellenwood and CMH—alleged that the District had insufficiently
investigated, addressed, and reported prior instances of misconduct, further putting Caamal
Canul on notice that the instances reported were not the only possible instances of abuse by
Duvall. Thus, to the extent that Caamal Canul was not informed of more incidents of Duvall’s
abuse, this was because of her own failure to inquire into whether allegations against him were
indeed adequately investigated and reported. Supervisors may not “turn a blind eye [to
misconduct] for fear of what they might see” and then claim they were not liable because they
did not see. Roseville, 296 F.3d at 440 (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651
(7th Cir. 2001)). The fact that Caamal Canul had received reports that complaints against Duvall
had not been sufficiently investigated also provided her reason to conclude that additional
incidents may have taken place.
Plaintiff has further raised a genuine issue of fact as to whether, confronted with this
knowledge, Caamal Canul fulfilled her obligations to address it. Caamal Canul acknowledged in
her deposition that she had responsibility for ensuring student safety, for ensuring teachers were
trained on mandatory reporting requirements and how to prevent child abuse, for establishing
and administering a system for reporting employee misconduct, and for generally ensuring the
District’s compliance with Michigan law. CMH specifically reported that the District had failed
to notify CMH, a student guardian, or protective services about alleged instances of abuse, and
that parents’ requests for information about alleged instances of abuse had gone unanswered.
Despite this, the record suggests that Caamal Canul did not confirm that the District was indeed
notifying the legally required parties of allegations, but simply passed the report to her
subordinates to follow up without instruction. She also heard that Ellenwood was dissatisfied
with the District’s investigation of her reports. Similarly, the record suggests Caamal Canul did
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 27
nothing to confirm that prior investigations were indeed thorough, let alone to confirm that other
alleged incidents had been sufficiently investigated.
Thus, when Caamal Canul was put on notice, by both Ellenwood and CMH, that the
systems she was responsible for were failing, she simply continued to channel reports into those
systems by referring the complaints to HR employees and subordinates without follow-up. This
raises a genuine dispute of material fact as to whether Caamal Canul acquiesced in Duvall’s
continued abuse of children. If a defendant knows that her previous action to address alleged
violations was inadequate and ineffective, simply repeating those same actions may constitute
deliberate indifference. Vance, 231 F.3d at 261. Accordingly, the district court erred in granting
summary judgment to Defendant Caamal Canul.
3. Defendant Connie Nickson
Plaintiff contends that Defendant Nickson, the principal of Gardner at the time Duvall
abused C.G., demonstrated deliberate indifference to the possibility of Duvall’s future abuse by
failing to act on evidence suggesting he had thrown a student into a bookcase, failing to speak
with Duvall about this incident, failing to inquire into Duvall’s history of physical abuse, failing
to ensure that Duvall was properly trained on using physical force with students, failing to
develop an improvement plan for Duvall, and by actively encouraging his misconduct. Again,
Plaintiff has demonstrated a genuine issue of material fact as to whether Defendant Nickson bore
supervisory liability for Duvall’s abuse of C.G.
Like Alwardt and Caamal Canul, Defendant Nickson possessed information showing
Duvall’s widespread pattern of abusing children well before October 2014. Specifically, viewed
in the light most favorable to Plaintiff, the evidence suggests she had heard about Duvall’s
historical “issues with [being] hands on” with students as of when he was transferred to Gardner,
(Nickson Dep., R. 112-30 at PageID ##3178–79); the February 2014 report about Duvall
throwing a student into a bookcase; other reports of Duvall throwing students that came out in
the investigation of the February 2014 incident; and that a student had been pulled from Duvall’s
classroom in May 2014 because the student’s mother perceived it to be an unsafe environment.
Again, these include multiple specific reports of abuse—some substantiated—over a short period
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 28
of time soon before Duvall’s abuse of C.G. While investigations concluded that there was
insufficient evidence of some of these allegations, again none were considered unfounded, nor
was Duvall exonerated in any of them. This is enough to raise a genuine issue of material fact as
to whether Nickson possessed information about a widespread pattern of abuse.
Defendants argue that Nickson notified HR about any reports of abuse that she received.
But Nickson could not confirm any of the specifics of her reports to HR—whom she spoke to,
when, or how she made that notification—instead only speaking to what she “would have” done.
(Id. at ##3176–77, 3180–81.) Viewed in the light most favorable to Plaintiff, this raises a
question of whether Nickson notified HR at all. Similarly, Nickson could not confirm that she
notified the parents of the victims or law enforcement, as required, or that she conducted any
additional investigation of the incidents. Nickson also could not recall speaking with Duvall
about the February 2014 incident and, when asked if she did anything to prevent future incidents
like this, she said that she simply “assumed he was okay to work” based on HR’s word. (Id. at
#3179.)
The record further allows the reasonable inference that Nickson actively encouraged
Duvall’s misconduct and abuse of children. Despite finding Duvall’s history of abuse
concerning, (id. at ##3179, 3181), Nickson consistently provided strong positive reviews of
Duvall, (see, e.g., Alwardt Dep., R. 112-24 at PageID #2890 (noting that Nickson said Duvall
was “an excellent teacher,” “a team player willing to take on tasks, and help out in any way,” and
“good for the building”)). In conducting Duvall’s performance review after the February 2014
incident, Nickson gave him a perfect score on classroom management. This conduct also raises
a genuine issue of material fact as to whether Nickson condoned Duvall’s alleged behavior.
Together, the record evidence more than suffices to allow Plaintiff’s claim that Nickson
bore supervisory liability for C.G.’s abuse to stand. The district court erred in concluding
otherwise.
4. Qualified Immunity
Having found that the district court erred in its analysis of whether Defendants committed
a constitutional violation, we next consider whether summary judgment was instead appropriate
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 29
on grounds of qualified immunity. The district court did not reach the question of qualified
immunity, but “[t]his court can affirm a decision of the district court on any grounds supported
by the record, even if different from those relied on by the district court.” Brown v. Tidwell,
169 F.3d 330, 332 (6th Cir. 1999) (per curiam); see also Sigley v. City of Parma Heights,
437 F.3d 527, 536 (6th Cir. 2006) (noting that the district court did not address qualified
immunity, but nonetheless considering it as it “presents a purely legal issue”).
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In deciding if an official
is entitled to qualified immunity, we generally employ the two-step inquiry laid out in Saucier v.
Katz, 533 U.S. 194 (2001). Thus, we ask whether, viewing the facts alleged in the light most
favorable to the injured party and resolving genuine disputes of fact in her favor, the facts “show
the officer’s conduct violated a constitutional right.” Id. at 201. We then consider “whether the
right was clearly established.” Id. We may exercise our discretion to decide in what sequence to
address these questions. Pearson, 555 U.S. at 236.
As discussed above, under the standards applied at the summary judgment stage, Plaintiff
has shown that Alwardt, Caamal Canul, and Nickson did violate a constitutional right.10 The
question is now whether this right was clearly established. Generally speaking, “[i]t is well
established that persons have a [F]ourteenth [A]mendment liberty interest in freedom from
bodily injury.” Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987); see also Howard,
695 F. App’x at 113. Likewise, C.G. “had a clearly established right under the substantive
component of the Due Process Clause to personal security and to bodily integrity.” Claiborne
County, 103 F.3d at 507. We have applied that right in the context of both sexual abuse, see id.,and physical abuse of students, see Howard, 695 F. App’x at 113.
10Defendants do not assert that Bacon and Robinson are entitled to qualified immunity, and so this issue is
not preserved for our review. (Def. Br. at 23; see also id. at 1 n.1 (noting that “the Administrators” refers to
Alwardt, Caamal Canul, and Nickson); id. at 42–46 (arguing that the Administrators are entitled to qualified
immunity).)
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 30
However, we may only deny qualified immunity if “[t]he contours of the right . . . [are]
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). We thus consider “‘whether the
violative nature of particular conduct is clearly established’ . . . ‘in light of the specific context
of the case, not as a broad general proposition.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(first quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011); and then quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam)). The Supreme Court has clarified that “the very
action in question” need not have been previously held unlawful, but “in the light of pre-existing
law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640.
In Warren Consolidated Schools, we concluded that the defendant was not entitled to
qualified immunity upon finding that he was confronted with a widespread pattern of allegations
of abuse by a teacher. 93 F. App’x at 822–23. We found it significant that the defendant did not
claim that he disbelieved the abuse allegations made against the teacher in question and that the
defendant acknowledged that the teacher’s behavior was inappropriate and dangerous to
students. Id. We concluded that a reasonable official would thus know that his actions were
unlawful, and denied qualified immunity. Id. In this case, too, we are faced with three
Defendants who agreed that Duvall’s alleged conduct was concerning and harmful to students.
Likewise, the Defendants do not claim that they disbelieved the allegations against Duvall. Yet
the record suggests Defendants alternately funneled any reports about Duvall’s conduct into the
same system that had failed to adequately respond to Duvall’s conduct, encouraged Duvall to use
more physical restraints, placed Duvall in classrooms alongside colleagues who were not made
aware of his history, and even provided glowing reviews of his management style. We conclude
that a reasonable official in any of Defendants’ positions would know that his or her response to
Duvall’s abuse was insufficient and unlawful. Defendants therefore are not entitled to qualified
immunity.
Because the district court’s grant of summary judgment in favor of Alwardt, Caamal
Canul, and Nickson also cannot be upheld on this alternative ground, we reverse that judgment.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 31
II. Motion to Amend
After the district court dismissed Plaintiff’s initial claims against the District,11 Plaintiff
filed a motion to amend her pleadings to add a claim that the District maintained customs,
policies, and practices demonstrating deliberate indifference to C.G.’s right to bodily integrity
that proximately caused his injury. See Monell, 436 U.S. at 694. The district court denied
Plaintiff leave to amend. We review that denial for an abuse of discretion. Inge v. Rock Fin.
Corp., 281 F.3d 613, 625 (6th Cir. 2002).
Following its first amendment of a pleading or after twenty-one days following service of
that pleading, “a party may amend its pleading only with the opposing party’s written consent or
the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). However, when a party seeks to amend its pleadings or join additional defendants after
the expiration of scheduling order deadlines, it must show good cause under Rule 16(b). Inge,
281 F.3d at 625; see also Fed. R. Civ. P. 16(b)(4) (stating that the trial “schedule may be
modified only for good cause and with the judge’s consent”). “The primary measure of Rule
16’s ‘good cause’ standard is the moving party’s diligence in attempting to meet” the scheduling
order’s requirements, but courts also consider “possible prejudice to the party opposing the
modification.” Inge, 281 F.3d at 625 (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th
Cir. 2001)).
Plaintiff filed her motion to amend the complaint on June 20, 2017. This was almost nine
months after the scheduling order’s deadline for motions to join parties or amend pleadings. In
an attempt to show good cause for her delay, Plaintiff explained that her motion was grounded in
new evidence she discovered when she deposed Duvall following that deadline. The district
court found that Plaintiff had not shown good cause because she “had all the information [she]
needed to timely allege Monell claims against [the District], both at the time [she] filed [her]
initial complaint and prior to the expiration of the deadline for amendments,” and thus “[could
11Plaintiff originally asserted claims against the District for violations of the Americans with Disabilities
Act, section 504 of the Rehabilitation Act of 1973, and the Michigan Persons with Disabilities Civil Rights Act.
The district court subsequently dismissed each of these claims, and Plaintiff does not challenge those dismissals on
appeal.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 32
not] show that, despite [her] diligence, [she] could not have met the deadline for amendments in
the Case Management Order.” (Order Den. Pl. Mot. to Amend Compl., R. 90 at PageID #975.)
The district court did not abuse its discretion in so finding. Plaintiff’s proposed Monell
claim was based on the District’s alleged failure to investigate or act upon complaints against
Duvall, failure to take appropriate disciplinary action against Duvall, and failure to report
instances of abuse to appropriate authorities as legally required. Although Plaintiff claims that
she discovered these failures only upon deposing Duvall on May 4, 2017, Plaintiff’s First
Amended Complaint actually detailed these same allegations. Moreover, evidence provided to
Plaintiff on April 10, 2015, more than a year prior to the scheduling deadline, included
information about the District’s investigations—or lack thereof—into Duvall’s prior misconduct
and the disciplinary action taken against him. And Plaintiff received information about the
District’s policies regarding seclusion and the use of force by at least September 29, 2016, when
Defendants submitted their Rule 26(a)(1) disclosures. Plaintiff cannot show that her Monell
claim against the District was unavailable prior to Duvall’s deposition, and thus has not shown
good cause for her delay.
Although the district court did not explicitly address whether allowing Plaintiff’s delayed
amendment would prejudice the Defendants, it is clear that it would. “The longer the delay, the
less prejudice the opposing party will be required to show.” DuBuc v. Green Oak Township,
312 F.3d 736, 752 (6th Cir. 2002). With her motion, Plaintiff sought to rejoin a party against
whom all claims had been dismissed a year before. While several District administrators
remained involved in the case, the District had a separate interest in the case. Protecting that
interest could require new depositions of individuals who had already been deposed, additional
discovery, and additional delay to allow District attorneys to familiarize themselves with the
updated record. Even assuming Defendants would be less prejudiced than they might otherwise
have been because District administrators were still involved in the lawsuit, this still presented
considerable reason to find prejudice.
Plaintiff could not justify her late motion to amend the complaint by showing either good
cause or a lack of prejudice. Thus, the district court did not abuse its discretion in denying that
motion. We affirm its decision.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 33
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s dismissal of Plaintiff’s
claims against Defendants Bacon and Robinson and its grant of summary judgment to
Defendants Alwardt, Caamal Canul, and Nickson, AFFIRM its denial of Plaintiff’s motion to
amend her pleadings, and REMAND for further proceedings consistent with this opinion.
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 34
_________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_________________________________________________
BOGGS, Circuit Judge, concurring in part and dissenting in part. Sheryl Bacon retired as
Principal of the Beekman Center at the end of the 2010–11 school year. More than three years
later, as set forth in the court’s opinion, a student was (as alleged) physically abused by his
teacher, Lester Duvall, at a different school. Duvall had taught at Principal Bacon’s school for
many years, through the time of her retirement.
As set forth in the court’s opinion, there were three specific instances of alleged
misconduct by Duvall at Beekman, in 2003, 2005, and 2007. (See op. at 3). In each instance, the
opinion and complaint use the term “reported” for these incidents, although the documents in the
record do not always support a direct statement that these instances were reported to Bacon.
The documents consist of either typed or handwritten statements, with no indication that
they were mailed or delivered to anyone. One set, for the 2007 incident, are not headed in any
way. A second set of two statements, about the 2005 incident, are headed “To Whom It May
Concern.” The third document is in the form of a letter addressed to “David,” with no indication
of who that might be, concerning a 2003 incident. Only one statement, which is one of the two
from 2005, adverts to the author speaking to Bacon, as accurately reported at page 3 of the
court’s opinion.
There are also statements made later, long after Bacon had retired, by Rezan Ellenwood
and others, stating, in general terms, that the person had reported misconduct by Duvall to
Bacon, without effect.
The legal question is whether, even at the motion-to-dismiss stage, allegations of three
specific instances of unaddressed abuse over an eight-year period, along with more general
statements, can suffice to support the possibility of liability for a principal for events that
occurred more than three years after the principal retired. In my view, the chain of any possible
causation is simply too attenuated to sustain that burden. Otherwise, any educational official
who does not respond appropriately to misconduct by an underling can be held liable for that
No. 19-1645 Garza v. Lansing Sch. District, et al. Page 35
person’s misconduct in other locations, apparently into perpetuity. I do not read our precedents
as supporting that degree of boundless liability, and I therefore respectfully dissent as to
reversing the district court’s judgment dismissing the suit against Principal Bacon. In all other
respects I concur in the court’s opinion.