Angela Larson, etc. v. Roger Miller , 76 F.3d 1446 ( 1996 )

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No. 94-2691
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Angela Larson, a minor, by *
Joseph and Gail Larson, her *
father and mother and next *
friends, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Roger Miller; George Spilker; *
Harvey Bulli; The Papillion- *
LaVista School District, a *
Political Subdivision, *
*
Defendants - Appellees. *
__________________________
Submitted: September 11, 1995
Filed: February 20, 1996
__________________________
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, McMILLIAN,
FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS
SHEPPARD ARNOLD, and MURPHY, Circuit Judges, en banc.
HANSEN, Circuit Judge.
Joseph and Gail Larson, individually and on behalf of their
daughter Angela, who was sexually abused by a school van driver,
brought suit against three school officials and the Papillion-
LaVista School District (PLSD). The suit alleged a 42 U.S.C.
§ 1983 claim for violations of Angela's constitutional rights, a 42
U.S.C. § 1985(3) claim for injury arising from a conspiracy to
violate the Larsons' constitutional rights, and a pendent state
negligence claim. The Larsons appeal the district court's1 order
1
The Honorable Lyle E. Strom, then Chief Judge of the United
States District Court for the District of Nebraska.
granting the school officials' and PLSD's posttrial motion for
judgment as a matter of law on the Larsons' constitutional claims
and dismissing their pendent state negligence claim.
A panel of this court initially affirmed the judgment on the
§ 1983 claim and reversed both the judgment on the § 1985(3)
conspiracy claim and the dismissal of the pendent state negligence
claim. We vacated the panel's opinion and granted the school
officials' and PLSD's suggestion for rehearing en banc. We now
affirm the judgment of the district court in all respects.
I. BACKGROUND
Viewing the evidence and reasonable inferences from the
evidence in the light most favorable to the party prevailing at
trial, McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th
Cir. 1994), a jury could reasonably find the following facts.
Angela Larson was born on December 3, 1979, and was diagnosed as
anophthalmic in her left eye and microthalmic in her right eye,
meaning she had no left eye and her right eye was extremely small.
Because of Angela's disability, her family relocated to the Omaha
metropolitan area in order to take advantage of Omaha's medical and
special educational facilities. At age two, Angela began receiving
home services arranged for her by George Spilker, PLSD's Director
of Special Services. Those home services continued until she was
five years old. When Angela reached kindergarten age, her school
district, PLSD, contracted Angela's special educational services
out to the Omaha Public Schools due to the severity of her
impairment.
When Angela was nine years old and not progressing to her
parents' satisfaction in her placement in the Omaha public schools,
Mr. Spilker arranged for an outside vision consultant to observe
and evaluate Angela. Mr. Spilker then arranged for her to begin
attending District 66's Oakdale school, where Angela did quite well
2
in a special educational program devised in part by Mr. Spilker.
The Larsons and Mr. Spilker lived in the same neighborhood and have
known each other for years. Mr. Spilker has spent more than 25
years as an educator of special needs children, he supervises the
education of over 600 special education students, and as indicated
he has been personally involved in developing and implementing
Angela's individual education plan since she was two years old.
Angela's parents dropped her off each morning at the
Children's Corner Day Care Center, where she was transported in a
PLSD van driven by a PLSD employee to Oakdale school. After
school, a PLSD van would transport Angela back to the Children's
Corner, where she waited for her parents. The only other student
on the van was a severely and profoundly handicapped youth who
possessed minimal communicative abilities. The van driver, Eugene
Szynskie, had been a part-time PLSD employee for three years before
he was hired as a van driver in 1986. Three PLSD supervisory
personnel interviewed Szynskie when he was first hired but did not
conduct a background check.
In the spring of 1988, Angela told her teacher, Jennie Grieb,
that Szynskie had been asking her whether she had been breast fed
and whether she was wearing silk panties. Ms. Grieb, a District 66
employee, promptly apprised Mr. Spilker of these inappropriate
comments. Mr. Spilker passed this information on to Harvey Bulli,
PLSD Director of Transportation, who in turn warned Szynskie not to
engage in improper conversations with students. Szynskie continued
to transport Angela to and from Oakdale without further complaint
until January of 1989.
En route home from piano lessons on Thursday evening, January
26, 1989, Angela informed her mother that Szynskie had fondled her
vaginal area while putting on her seat belt. On Friday morning,
January 27, Mrs. Larson called Mr. Bulli, PLSD's Transportation
Director and the van driver's supervisor, to tell him that Angela
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would not be riding the van that day. She did not tell Mr. Bulli
why. Mrs. Larson then called Mr. Carr, the principal of Angela's
Oakdale School, and informed him of the touching incident. Knowing
that Mr. Spilker would be at a meeting in Lincoln, Nebraska, that
day, Mr. Carr arranged for a colleague of his who was also
attending the Lincoln meeting to relay Mrs. Larson's information to
Mr. Spilker.
When Mr. Spilker returned to Omaha on Friday evening, he
called Mrs. Larson, who informed him of Angela's complaint. Mr.
Spilker cautioned the Larsons about broadcasting the allegations,
which he said might bring on a slander suit by the driver, and told
the Larsons that the matter was a serious one which pitted Angela's
word against the driver's. Mr. Spilker indicated that bringing
charges against Szynskie might also cause problems for the family
and for Angela's brother, Eric, who was a sophomore at the local
high school. He told the Larsons that he would contact the local
Chief of Police (also a neighbor). He called Chief Engberg that
night and, without divulging any names, discussed the matter in
general terms.
On Monday morning, the PLSD superintendent, Roger Miller, held
his regular staff conference at 9:00 a.m. Mr. Spilker informed him
of Angela's allegations and of the need for a criminal records
check. Mr. Miller gave orders that immediately removed Szynskie
from his van driving job and assigned him to warehouse duty pending
further investigation. He also directed the assistant
superintendent for personnel to provide Szynskie's name, date of
birth, and social security number to the Chief of Police for a
records check. He told Mr. Spilker to tell the Larsons what was
being done, and Mr. Spilker did so in a 9:30 a.m. phone call to
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Mrs. Larson. Specifically, Mr. Spilker told Mrs. Larson that
Szynskie had been taken off the van and that a criminal records
check had been ordered. He reiterated that it was Angela's word
against Szynskie's. Mr. Spilker called a second time on Monday to
tell Mrs. Larson that the other van drivers had reported that
Angela had made sexual comments to them. Mrs. Larson became irate
and called her husband, who became "equally irate" (Trial Tr. at
380) when he learned of Spilker's second call. The Larsons
concluded that "the tables were turning" on Angela (id. at 485)
because she was a handicapped female who was making a complaint of
sexual abuse.
Mrs. Larson called Mr. Spilker at home about 7:00 p.m. on
Monday night to tell him that they would not be using the school
van until the matter was settled. Mr. Spilker once again told her
it was Angela's word against the driver's and that there was the
risk of a slander suit by Szynskie. The Larsons then called their
personal attorney who told them that the Nebraska child abuse
reporting statute gave them protection from civil suits for
reporting the matter to police authorities. The Larsons decided
then to call the prosecuting authorities the next morning.
Early Tuesday morning, Mr. Larson called the Sarpy County
Attorney's office. That office refused to take the complaint and
told him to call the police. Mrs. Larson then called a local
police officer whom she knew and made a report of the touching
incident. The officer immediately deduced that the touching had
occurred at a location outside of his jurisdiction, and he called
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the sheriff's office, which sent investigators.2
While Mrs. Larson was reporting the matter to the police
department on Tuesday morning, the PLSD was terminating Szynskie's
employment. The Chief of Police had reported back that Szynskie
had a previous arrest but no conviction for an alleged sexual
assault on his stepdaughter. The Chief had also told the school
authorities that the arrest information was confidential.
Superintendent Miller instructed Mr. Spilker to tell the Larsons
that the school had terminated the driver, that the police had done
a records check (without revealing the results), and that the law
enforcement authorities would have to prosecute the case, not the
school district. Mr. Spilker did so.
Six months after the incident, Mr. Spilker asked Chief Engberg
to approve a press release stating that PLSD had reported the
alleged abuse on Friday, January 27, 1989. Engberg refused to
approve the release, stating that, in his view, their conversation
that night did not constitute a report.
Angela and her parents sued PLSD, Mr. Miller, Mr. Spilker, and
Mr. Bulli, alleging that PLSD and the school officials deprived
Angela of her civil rights, 42 U.S.C. § 1983, and conspired to deny
Angela's and her family's civil rights, 42 U.S.C. § 1985(3). The
complaint also included a pendent state negligence claim. After a
trial on the Larsons' constitutional claims, the jury returned a
verdict in favor of the Larsons, awarding $80,002 in compensatory
2
About three weeks later, the state charged Szynskie with
sexual abuse. Ultimately, a jury convicted him, and he was
sentenced to jail for the crime.
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damages and $395,001 in punitive damages. The district court took
the pendent negligence claim under submission, pursuant to Neb.
Rev. Stat. § 13-907 (Reissue 1991) (requiring that such suits be
heard by the court without a jury).
The defendants filed a timely posttrial motion for judgment
notwithstanding the verdict or judgment as a matter of law pursuant
to Fed. R. Civ. P. 50(b).3 The district court granted the motion,
set aside the jury verdicts, and entered judgment in favor of the
defendants on the constitutional claims. The district court also
entered judgment in favor of the defendants on the pendent state
law tort claim, dismissing the Larsons' complaint. The Larsons
appeal.
II. DISCUSSION
We review the district court's entry of judgment as a matter
of law "in the light most favorable to the party who prevailed
before the jury." City of Omaha Employees Betterment Ass'n v. City
of Omaha, 883 F.2d 650, 651 (8th Cir. 1989). This standard
requires this court to:
(1) resolve direct factual conflicts in favor of the
nonmovant, (2) assume as true all facts supporting the
nonmovant which the evidence tended to prove, (3) give
the nonmovant the benefit of all reasonable inferences,
and (4) deny the motion if the evidence so viewed would
allow reasonable jurors to differ as to the conclusions
that could be drawn.
3
A motion for judgment as a matter of law now encompasses
all motions labeled as motions for judgment notwithstanding the
verdict or motions for a directed verdict. Fed. R. Civ. P. 50
(subdiv. (a), cmt. to 1993 amend.). Consequently, we will apply
cases discussing the standard of review for a motion
notwithstanding the verdict interchangeably with cases discussing
motions for judgment as a matter of law. McKnight, 36 F.3d at
1400 n.1.
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Pumps and Power Co. v. Southern States Indus., 787 F.2d 1252, 1258
(8th Cir. 1986) (quotation omitted). We are not, however, entitled
to give a party "the benefit of unreasonable inferences, or those
at war with the undisputed facts." City of Omaha Employees
Betterment Ass'n, 883 F.2d at 651. "A mere scintilla of evidence
is inadequate to support a verdict," and judgment as a matter of
law is proper when the record contains no proof beyond speculation
to support the verdict. Id. at 651-52.
A. The Larsons' 42 U.S.C. § 1983 Claim.
Angela's § 19834 claim alleges that PLSD and the individual
defendants denied Angela's civil rights by failing to receive,
investigate, and act upon Angela's prior complaint and by failing
to adequately train its employees in the prevention and reporting
of the abuse of handicapped children. We address each argument in
turn.
1. Failure to Receive, Investigate, and Act.
The individual defendants are subject to personal liability
under § 1983 for failure to adequately respond to the known risk of
physical and emotional harm presented by Szynskie if the Larsons
proved that the defendants:
(1) Received notice of a pattern of unconstitutional acts
committed by subordinates;
4
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
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(2) Demonstrated deliberate indifference to or tacit
authorization of the offensive acts;
(3) Failed to take sufficient remedial action; and
(4) That such failure proximately caused injury to the
child[].
Jane Doe A By and Through Jane Doe B v. Special Sch. Dist., 901
F.2d 642, 645 (8th Cir. 1990). PLSD, a local governmental entity,
may be found liable for "a governmental custom of failing to
receive, investigate and act upon complaints of sexual misconduct
of its employees" if the Larsons proved the existence of an
official custom of such conduct and if that custom caused them
constitutional harm. Thelma D. by Dolores A. v. Board of Educ.,
934 F.2d 929, 932 (8th Cir. 1991). To prove such a custom, the
Larsons must show:
1) The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the
governmental entity's employees;
2) Deliberate indifference to or tacit authorization of
such conduct by the governmental entity's policymaking
officials after notice to the officials of that
misconduct; and
3) That plaintiff was injured by acts pursuant to the
governmental entity's custom, i.e., that the custom was
the moving force behind the constitutional violation.
Jane Doe A, 901 F.2d at 646.
In its memorandum opinion, the district court concluded that,
giving the Larsons the benefit of all reasonable inferences, "the
evidence presented at trial simply does not suggest that any
pattern of unconstitutional behavior existed and the verdict must
be overturned against both the school district and the individual
defendants." (Appellants' Addend. at 6.) We agree.
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The Larsons can point only to one prior complaint regarding
Szynskie's behavior toward Angela. In previous § 1983 actions
against school officials, we have held far more extensive records
of unheeded prior complaints insufficient to constitute a pattern
of unconstitutional behavior. See Jane Doe A, 901 F.2d at 644, 646
(holding that receiving complaints over the course of two years of
isolated incidents -- including that bus driver had used foul
language, physically restrained and assaulted children, kissed a
child, placed his hand down a boy's pants, and touched boys'
crotches -- was insufficient to show persistent pattern of
unconstitutional misconduct); Thelma D., 934 F.2d at 933 ("[F]ive
complaints scattered over sixteen years cannot, as a matter of law,
be said to comprise a persistent and widespread pattern of
unconstitutional misconduct."). Accordingly, we believe that the
district court correctly found that there was no evidence of a
pattern of unconstitutional behavior in this case. Finding no
widespread pattern of unconstitutional behavior, it is unnecessary
for us to consider whether deliberate indifference existed or
whether injury resulted.
2. Failure to Train.
To establish liability on the part of PLSD for its failure to
adequately train its employees to report and to prevent the sexual
abuse of handicapped children, the Larsons must prove that PLSD's
"failure to train its employees in a relevant respect evidences a
`deliberate indifference' to the rights of the students." Thelma
D., 934 F.2d at 934 (quoting City of Canton v. Harris, 489 U.S.
378, 389 (1989)). The Larsons must prove that PLSD "had notice
that its procedures were inadequate and likely to result in a
violation of constitutional rights." Id. As the Larsons
accurately point out, notice of a pattern of unconstitutional
behavior need not be shown where the failure to train employees "is
so likely to result in a violation of constitutional rights that
the need for training is patently obvious." Id.
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 In this case, we find no evidence to support the Larsons'
claim that PLSD employees received inadequate training. The
evidence is uncontroverted that PLSD required its employees to
report all suspected cases of child abuse to the proper
jurisdictional law enforcement authority pursuant to Nebraska's
rigid reporting statute. In addition, PLSD repeatedly held
meetings between its employees and law enforcement officers from
all five law enforcement agencies serving PLSD in order to enhance
communication between PLSD and law enforcement, to develop
strategies for reporting child abuse, and to determine how to
follow up on reports of alleged child abuse. Faced with similar
facts in Jane Doe A, this court found no evidence of "deliberate
indifference to the rights of the handicapped children in the
District's training program for bus drivers, teachers, supervisors,
and bus aides." 901 F.2d at 646. We conclude that the Larsons
have not produced sufficient evidence to support a § 1983 action
based on PLSD's failure to train its employees.
B. The Larsons' 42 U.S.C. § 1985(3) Claim.
The Larsons' § 1985(3) claim alleges that the individual
defendants, animated by an invidiously discriminatory animus
against handicapped females, conspired to deny the Larsons' rights
under the First and Fourteenth Amendments by preventing them from
reporting Angela's abuse. In order to prove the existence of a
civil rights conspiracy under § 1985(3), the Larsons must prove:
(1) that the defendants did "conspire," (2) "for the purpose of
depriving, either directly or indirectly, any person or class of
persons of equal protection of the laws, or equal privileges and
immunities under the laws," (3) that one or more of the
conspirators did, or caused to be done, "any act in furtherance of
the object of the conspiracy," and (4) that another person was
"injured in his person or property or deprived of having and
exercising any right or privilege of a citizen of the United
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States." 42 U.S.C. § 1985(3). See also City of Omaha Employees
Betterment Ass'n, 883 F.2d at 652.
The "purpose" element of the conspiracy requires that the
plaintiff prove a class-based "invidiously discriminatory
animus." Moreover, the plaintiff must allege with
particularity and specifically demonstrate with material
facts that the defendants reached an agreement. She can
satisfy this burden by "point[ing] to at least some facts
which would suggest that appellees `reached an
understanding' to violate [her] rights."
Id. (internal citations omitted) (alterations in original).
The jury returned special verdicts against Mr. Spilker and Mr.
Miller, but the district court granted their posttrial motion for
judgment as a matter of law. The district court concluded that the
Larsons had failed to present "any evidence from which the jury
could infer that Spilker and Miller agreed to deprive the Larsons
of their rights under the [F]irst or [F]ourteenth [A]mendments."
(Appellants' Addend. at 7.) The court also concluded, "Nor does
the evidence support the jury's finding that Spilker and Miller
were motivated by an invidiously discriminatory animus toward
handicapped females." (Id. at 7-8.) Alternatively, the district
court concluded that even if there were sufficient evidence to
support the Larsons' conspiracy allegations, their claim was barred
by the intracorporate conspiracy doctrine.
We find it difficult even to discern precisely what
constitutional rights the Larsons contend that the alleged
conspiracy deprived them of. The only claim we can identify is
that the Larsons allege a conspiracy to deprive them of their right
as citizens to report the January 1989 incident. (See Jury Instr.
17 & 19, Jt. App. Vol. I at 71, 73.) We agree with the district
court that, even giving the Larsons the benefit of every inference,
the record in this case does not show that their ability or
opportunity to report the incident to law enforcement was impeded
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by any of the defendants in any significant way.
The Larsons first brought the incident to Oakdale (not PLSD)
school officials' attention on Friday morning, and Mr. Spilker,
having received the information thirdhand, contacted them as soon
as he returned from his out-of-town meeting. Mr. Spilker's non-
lawyer legal advice to the Larsons "not to go out on the streets
and tell everybody" because "[y]ou will be sued for slander" by the
van driver and "things like this could be hard on the family," as
Angela's father recounted it (Trial Tr. at 376), or "that we cannot
run out and start telling just anyone about this -- that we have to
be very careful," as Mrs. Larson testified (Id. at 478), contained
no advice not to report the matter to law enforcement authorities.
Nebraska Revised Statute § 28-716 (Reissue 1989) provides for
immunity from civil liability for reporting suspected child abuse,
but this immunity extends only to persons who participate in an
investigation of child abuse or who actually make a report to law
enforcement authorities of suspected child abuse upon reasonable
cause to believe a child has been subjected to abuse. The statute
provides no protection for the kind of general publication of the
allegations that Mr. Spilker warned might trigger a slander suit by
Szynskie. Mr. Larson testified that Mr. Spilker told him to
proceed with caution not only because of the risk of a slander suit
but also because "this is tough for families and it could be tough
for Eric [in high school]." (Trial Tr. at 376.) This statement,
to the effect that making the incident public could cause
difficulties for their son at the high school, might be stretched
far enough to be construed as some sort of threat or intimidation.
Nevertheless, we find it insufficient in itself to constitute a
constitutional deprivation. Mr. Spilker expressly told the Larsons
they were free to report the incident when he told them that the
school district was not going to press the charges.
Both of the Larsons testified that they made no report
themselves to law enforcement officials until Tuesday morning, and
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that they had waited over the weekend to see what the school
authorities would do. Mr. Larson testified that their main concern
was that the accused driver not be permitted to be in contact with
school children, a result accomplished the first thing Monday
morning when Mr. Spilker informed Mr. Miller of the matter and Mr.
Miller immediately ordered Szynskie off of van duty and into the
warehouse. The Larsons decided to report the matter themselves
after conferring with their attorney at about 9:00 p.m. on Monday
night. They reported the incident to authorities on Tuesday
morning. There simply is no evidence that the school officials
deprived the Larsons of their opportunity to report the incident.
Even if we were to assume that all of the four-day delay here was
somehow caused by the school officials, the Larsons do not allege
that any further injury occurred to Angela as a result of this
delay. Thus, we conclude that any delay in reporting this incident
does not rise to the level of a constitutional deprivation.
Even if the Larsons had demonstrated a constitutional
violation, after carefully considering the entire record, we agree
with the district court that there was simply inadequate evidence,
either direct or circumstantial, of a conspiracy between Mr.
Spilker and Mr. Miller to support the jury's verdict. There is no
doubt that Mr. Spilker, Mr. Bulli, and Mr. Miller attended meetings
where the incident was discussed, and the school district's
response to it was determined. However, there is no evidence from
which to reasonably infer that a conspiracy to deprive the Larsons
of their right to report the incident was formed at these meetings.
Mr. Spilker, at Superintendent Miller's explicit instructions,
informed the Larsons of all of the school's actions on the matter.
The only information that Mr. Miller directed Mr. Spilker not to
pass on to the Larsons was the information about Szynskie's prior
arrest -- information that Mr. Miller reasonably believed was
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obtained in confidence from the Chief of Police.5 In all other
respects, Mr. Miller directed Mr. Spilker to inform the Larsons of
everything that the school authorities had done and were doing, and
Mr. Spilker did so.
We see no evidence from which a jury could conclude that a
conspiracy existed among the school officials to deprive the
Larsons of any constitutional rights, and we see no evidence of any
acts from which a jury could conclude that any injury to or
deprivation of the Larsons' constitutional rights actually
occurred. The jury's verdict in this case appears to have been the
product of pure speculation and understandable sympathy for a
little girl who was indisputably harmed. Our decision is not
intended to belittle the harm she has suffered, but rather to
prevent the injustice of burdening persons who committed no
unconstitutional misconduct with liability for that harm. Absent
some evidence of a conspiracy and absent some evidence that the
actions of these defendants either caused injury to the plaintiffs
or intentionally prevented the plaintiffs from exercising a right
or privilege granted them as United States citizens, there can be
no liability under § 1985.
Because the evidence was insufficient to allow a reasonable
jury to find the existence of a civil rights conspiracy among the
school officials, we conclude that the jury awards of compensatory
and punitive damages were properly set aside. Given this
conclusion, we need not reach the Larsons' contention that the
school officials harbored an invidiously discriminatory animus
toward handicapped females. We likewise need not reach the
propriety of the district court's alternate holding that the
intracorporate conspiracy doctrine also bars the punitive damage
5
The Larsons actually learned about Szynskie's prior arrest
at about the same time that the school officials learned of it
from the Chief of Police.
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award.6
C. The Larsons' Pendent State Law Negligence Claims.
The Larsons also alleged that the defendants were negligent
under state law for failing to properly screen, supervise, and
reprimand Szynskie, the van driver, and for failing to follow the
school district's guidelines. The district court dismissed the
Larsons' pendent negligence claim, concluding that it was barred by
the discretionary function exception to the Nebraska Political
Subdivisions Tort Claim Act. We review the district court's
determination of state law de novo. Salve Regina College v.
Russell, 499 U.S. 225, 231, 238 (1991).
The Nebraska Political Subdivision Tort Claims Act, Neb. Rev.
Stat. § 13-905 to § 13-926 (Reissue 1991) (the Act), provides a
limited waiver of governmental immunity that allows a plaintiff to
recover for injuries caused by the negligence of a subdivision's
officers, agents, and employees. Under the discretionary function
exception, however, a plaintiff may not recover for a claim "based
upon the exercise or performance of or the failure to exercise or
perform a discretionary function or duty on the part of the
political subdivision or an employee of the political subdivision,
whether or not the discretion is abused." Neb. Rev. Stat. § 13-
910(2) (Reissue 1993). In other words, the "[p]erformance or
nonperformance of a discretionary function cannot be the basis for
liability under the Political Subdivisions Tort Claims Act." Lemke
v. Metropolitan Util. Dist., 502 N.W.2d 80, 87 (Neb. 1993).
6
According to the intracorporate conspiracy doctrine, a
corporation cannot conspire with itself through its agents when
the acts of the agents are within the scope of their employment.
Runs After v. United States, 766 F.2d 347, 354 (8th Cir. 1985).
The intracorporate conspiracy doctrine is equally applicable to
governmental entities such as school districts. Id.
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 Under Nebraska law, "[t]he discretionary-function exemption
extends only to the basic policy decisions and not to ministerial
acts arising therefrom." Koepf v. County of York, 251 N.W.2d 866,
870 (Neb. 1977). An element of judgment or choice is "essential
and indispensable" for discretionary conduct to be exempted from
liability. Lemke, 502 N.W.2d at 87. The Act thus protects "`the
discretion of a governmental executive or administrator to act
according to one's judgment of the best course to be taken.'"
Security Inv. Co. v. State, 437 N.W.2d 439, 444 (Neb. 1989)
(quoting Wickersham v. State, 354 N.W.2d 134, 138 (Neb. 1984)).
The type of discretion protected "`includes determinations or
judgments made in establishing plans. Where policy judgment
exists, there also exists discretion exempted from liability under
the State Tort Claims Act.'" Id. (quoting Wickersham, 354 N.W.2d
at 138). A ministerial act, on the other hand, is "one which a
person performs in a given state of facts, in a prescribed manner,
in obedience to the mandate of legal authority, without regard to,
or the exercise of, his own judgment upon the propriety of the act
being done." Jasa By and Through Jasa v. Douglas County, 510
N.W.2d 281, 290 (Neb. 1994) (internal quotations and citation
omitted).
We conclude that the district court properly relied on the
discretionary function exception to the Political Subdivision Tort
Claims Act in this case. We agree with the district court's
assessment that decisions to "investigate, hire, fire, and retain"
employees are generally discretionary. Thus, these decisions fall
within the discretionary function exception and cannot be the basis
for liability on the part of the school district.
The Larsons also contend that the school district failed to
follow PLSD's established policy with regard to child abuse
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reporting. PLSD's policy7 required compliance with the Nebraska
state child abuse reporting law and required the superintendent to
formulate a procedure to be followed in cases of suspected child
abuse. We believe that the grant of responsibility to formulate
procedures involves the type of policy-making judgment that is
exempted from the Act. Furthermore, the decision of whether to
report the 1988 inappropriate conversation by Szynskie pursuant to
the state child abuse reporting statute turned upon an exercise of
personal discretionary judgment. The Nebraska child abuse
reporting law requires any person to report suspected child abuse
if that person has "reasonable cause to believe a child has been
subjected to abuse." Neb. Rev. Stat. § 28-711 (Reissue 1989).
Whether or not "reasonable cause" exists within the meaning of the
statute requires an exercise of discretion and personal judgment,
which takes the matter out of the realm of a ministerial act. In
other words, the conditions of the statute describing when child
abuse reporting is required are not so specifically designated and
devoid of personal judgment as to render this a ministerial act.
III. CONCLUSION
After carefully reading the testimony offered at trial, we
conclude that the experienced district judge's granting of the
defendants' posttrial motion for judgment as a matter of law was
correct. There is woefully insufficient evidence from which a
reasonable jury could find a § 1983 violation or a civil rights
conspiracy to deprive Angela or her parents of any constitutional
7
REPORTING OF SUSPECTED ABUSE/NEGLECT OF STUDENTS (5015)
The District recognizes its responsibility in
helping prevent abuse. The District and its employees
will follow applicable state laws in the reporting of
suspected cases of abuse or neglect.
The superintendent is responsible for formulating
a procedure to be followed by District employees to be
followed in suspected cases of child abuse or neglect.
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18
rights. We also conclude that the district court properly
dismissed the pendent state negligence claim. Accordingly, we
affirm the judgment of the district court.
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19
FLOYD R. GIBSON, Circuit Judge, with whom McMILLIAN, Circuit Judge,
joins, concurring in part and dissenting in part.
I agree with the majority's analysis of the Larsons' 42 U.S.C.
§ 1983 claim. I write separately, however, to express my
disagreement with its treatment of the Larsons' 42 U.S.C. § 1985(3)
conspiracy claim and pendent tort claim.
I believe the Larsons produced sufficient evidence to allow a
reasonable jury to find that Roger Miller and George Spilker, in an
effort to save face and avoid potential liability, conspired to
intimidate Angela Larson and her family into not reporting her
abuse to the proper authorities. City of Omaha Employees
Betterment Ass'n v. City of Omaha, 883 F.2d 650, 651 (8th Cir.
1989) (We review the district court's entry of judgment as a matter
of law in the light most favorable to the party who prevailed
before the jury). This Court has defined a civil conspiracy as "a
combination of two or more persons acting in concert to commit an
unlawful act, or to commit a lawful act by unlawful means, the
principal element of which is an agreement between the parties to
inflict a wrong against or injury upon another, and an overt act
that results in damage." Rotermund v. United States Steel Corp.,
474 F.2d 1139, 1145 (8th Cir. 1973) (quotations omitted). In order
to prove the existence of a conspiracy under § 1985(3), the Larsons
"must allege with particularity and specifically demonstrate with
material facts that the defendants reached an agreement." City of
Omaha Employees Betterment Ass'n, 883 F.2d at 652 (citation
omitted). That may be accomplished by "pointing to at least some
facts which would suggest that [the defendants] reached an
understanding to violate [the Larsons] rights." Id. (quotations
omitted). The Larsons need not show that each participant knew the
"exact limits of the illegal plan . . . ." Hampton v. Hanrahan,
600 F.2d 600, 621 (7th Cir. 1979) (quotation omitted), rev'd in
part on other grounds, 446 U.S. 754, 759 (1980). The question of
the existence of a conspiracy to deprive the plaintiffs of their
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20
constitutional rights "should not be taken from the jury if there
is a possibility the jury could infer from the circumstances a
'meeting of the minds' or understanding among the conspirators to
achieve the conspiracy's aims." Putnam v. Gerloff, 701 F.2d 63, 65
(8th Cir. 1983) (quoting Hampton, 600 F.2d at 621).
The evidence is clear that, beginning on Monday, January 30th,
Spilker and Miller were in constant communication regarding
Angela's allegations. Miller repeatedly directed Spilker to pass
certain information on to the Larsons while withholding other
information. Following each meeting, Spilker reiterated what could
reasonably be interpreted as thinly-veiled threats regarding
slander liability as well as the effect that going public with the
charges would have on Angela's school-age brother. He also
disparaged Angela's credibility, repeatedly emphasizing that the
issue would ultimately come down to Angela's word against that of
the van driver. Spilker also told Gail Larson that he had learned
in the course of a meeting with Bulli and Miller that Angela was
the one instigating the sexual comments. Giving the Larsons the
benefit of all reasonable inferences, Pumps & Power Co. v. Southern
States Indus., 787 F.2d 1252, 1258 (8th Cir. 1986), I believe they
produced sufficient evidence to allow the jury to reasonably infer
that Miller and Spilker had reached an understanding to violate the
Larsons' civil rights.
The evidence adduced at trial also indicates that this
administrative browbeating successfully prevented the Larsons from
reporting Angela's abuse to the proper legal authorities over the
weekend beginning on Friday, January 27, until Tuesday, January 31.
In doing so, Miller and Spilker successfully conspired to deprive
the Larsons of both their First Amendment right to report Angela's
abuse and their right to equal protection under the law, albeit
temporarily. The record indicates that the Larsons decided to
report the incident only after a family meeting in which they
collectively decided to brave Spilker's threats. Miller and
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21
Spilker's conspiracy was, admittedly, only temporarily successful
in muzzling the Larsons. I do not, however, believe that a
temporary violation of constitutional rights is the equivalent of
no violation whatsoever. For these reasons, I would reverse the
district court's grant of judgment as a matter of law on the
Larsons' conspiracy claim.
I would also remand the pendent negligence claim to the extent
that it alleges a failure to follow and comply with PLSD's
established policy on the prevention and reporting of suspected
cases of child abuse or a failure to comply with the Nebraska child
abuse reporting statute. Neb. Rev. Stat. § 28-711 (Reissue 1989).
The Larsons' negligence claim necessarily raises the issue of
whether Miller negligently failed to follow PLSD's established
policy in effect since 1987 on the reporting of suspected child
abuse.1 That policy directs the superintendent to formulate a
procedure to be followed by PLSD officials in the reporting of
suspected child abuse or neglect. At trial, Miller flatly admitted
that he had failed to develop any such procedures whatsoever.
The majority immunizes Miller's nonfeasance by concluding that
the responsibility of formulating the type of procedures mandated
by PLSD's policy requires the type of decision-making and policy
judgment safeguarded by the discretionary function exception to the
Nebraska Tort Claims Act. I disagree. This case is not about
second-guessing the merits of any procedures developed by Miller,
1
REPORTING OF SUSPECTED ABUSE/NEGLECT OF STUDENTS (5015)
The District recognizes its responsibility in
helping prevent abuse. The District and its employees
will follow applicable state laws in the reporting of
suspected cases of abuse or neglect.
The superintendent is responsible for formulating
a procedure to be followed by District employees to be
followed in suspected cases of child abuse or neglect.
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22
but rather his admitted and uncontroverted failure to formulate any
procedures whatsoever in direct contravention of that policy's
mandate. As the Nebraska Supreme Court observed, "the
discretionary function exception will not apply when a . . .
statute, regulation, or policy specifically prescribes a course of
action for an employee to follow." Jasa ex rel. Jasa v. Douglas
County, 510 N.W.2d 281, 289 (Neb. 1994). Consequently, I believe
Miller's failure to follow PLSD's established directive implicates
the violation of a ministerial duty, not the type of incorrect
policy decision protected by the discretionary function exception,
and is therefore actionable under the Nebraska Tort Claims Act.
The Larsons' tort claim also raises the issue of whether the
defendants' failure to properly respond to Angela's complaint
violated Nebraska's reporting statute. That law requires all
persons "having reasonable cause to believe that a child has been
subjected to conditions or circumstances which reasonably would
result in abuse or neglect" to "report such incident or cause a
report to be made to the proper law enforcement agency . . . . "
Neb. Rev. Stat. § 28-711 (Reissue 1989). While the determination
of "reasonable cause" certainly qualifies as a discretionary
function, the duty to report the suspected abuse to the proper
authorities once such reasonable cause has been established is a
purely ministerial act, utterly devoid of any discretion or policy
judgment. I believe that PLSD officials clearly had reasonable
cause as a matter of law to report Angela's abuse as early as
Friday, January 27, 1989, and certainly once the background check
revealed Szynskie's sordid past. As such, I believe that PLSD's
failure to follow the clear mandate of the Nebraska reporting
statute despite the existence of "reasonable cause" represents the
dereliction of a ministerial duty. At the very least, I would
remand this issue to the district court for further consideration
of whether or not such reasonable cause existed from January 27,
1989, to January 31st of that year.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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