Preschooler II v. Davis , 479 F.3d 1175 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRESCHOOLER II; JANE ROE, 
Plaintiffs-Appellees,
v.
CLARK COUNTY SCHOOL BOARD OF
TRUSTEES; CLARK COUNTY SCHOOL
DISTRICT; KEITH RHEAULT; STATE OF No. 04-16891
NEVADA; STATE OF NEVADA
DEPARTMENT OF EDUCATION,  D.C. No.
CV-04-00348-RLH
Defendants,
OPINION
and
KAY DAVIS; CARLOS ARTURO
GARCIA; CHARLENE A. GREEN;
MICHAEL S. HARLEY; DARRYL
WYATT; KATHLEEN LISANTI,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
November 16, 2006—San Francisco, California
Filed March 21, 2007
Before: A. Wallace Tashima and M. Margaret McKeown,
Circuit Judges, and David A. Ezra* District Judge.
*The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
3325
3326 PRESCHOOLER II v. DAVIS
Opinion by Judge McKeown
PRESCHOOLER II v. DAVIS 3329
COUNSEL
Mark E. Ferrario and Tami D. Cowden, Kummer Kaempfer
Bonner Renshaw & Ferrario, Las Vegas, Nevada, for the
appellants.
Niels L. Pearson and Marianne C. Lanuti, Selman Breitman,
LLP, Las Vegas, Nevada, for the appellees.
OPINION
McKEOWN, Circuit Judge:
This case arises from the claimed physical abuse of a four-
year old disabled child in a public school setting. The child,
Preschooler II, and his mother, Jane Roe, filed suit against the
state, school district, school board and various school person-
nel (“School Officials”) under the Americans with Disabilities
Act (ADA), the Rehabilitation Act, the Individuals with Dis-
abilities Education Act (IDEA), and 42 U.S.C. § 1983.1 Pre-
schooler II claims abuse ranging from being beaten, slapped,
and body slammed to unexplained bruises and shoeless walks
from the school bus to the classroom. The district court
denied the School Officials’ motion to dismiss based in part
on qualified immunity. In this interlocutory appeal, the School
Officials properly raise only the issue of qualified immunity
for the § 1983 claims.2
1
In the district court, this case is a companion case to Doe et al. v. State
of Nevada et al., CV-S-03-1500-LRH, a suit brought by a disabled autistic
child, referred to as Preschooler I, who was in Preschooler II’s class.
2
Both parties seek to use this appeal to air a variety of discovery dis-
putes that have emerged in Preschooler I’s case, as well as to develop fur-
ther their respective requests for declaratory judgment regarding Nev.
Rev. Stat. § 388.521, the Nevada Reporting Statute. The district court has
yet to address these matters, and they are not, in any event, appropriate for
consideration in this interlocutory appeal. Additionally, while a significant
3330 PRESCHOOLER II v. DAVIS
Not long ago, our court acknowledged “that the right of a
student to be free from excessive force at the hands of teach-
ers employed by the state was clearly established as early as
1990.” Doe v. State of Hawaii Dep’t of Educ., 334 F.3d 906,
910 (9th Cir. 2003). At this stage of the proceedings, we con-
strue the allegations in the light most favorable to Pre-
schooler II. See, e.g., Beier v. City of Lewiston, 354 F.3d
1058, 1063 (9th Cir. 2004). Because certain of the allegations,
such as the unexplained bruising and shoeless walks, do not
rise to the level of constitutional claims, we reverse the dis-
trict court’s denial of qualified immunity on those claims. We
affirm the district court’s denial of qualified immunity on the
remaining claims.
BACKGROUND3
In the 2002-2003 school year, Preschooler II was four years
old. He had been diagnosed with tuberous sclerosis, a neuro-
logical disease that causes tumors to form in various organs,
primarily in the brain, eyes, heart, kidneys, skin, and lungs.
Symptoms include seizures, rashes, and skin lesions. In addi-
tion, Preschooler II suffers from non-verbal autism. Based on
these diagnoses, Preschooler II is eligible for special educa-
tion services under the IDEA. See 20 U.S.C. § 1400.
In compliance with the IDEA and state regulations, Pre-
schooler II began his schooling at a special education program
portion of the parties’ briefs concerns whether the IDEA may be enforced
through § 1983 actions, focus on this issue causes unnecessary confusion.
Preschooler II’s Amended Complaint does not seek relief for IDEA viola-
tions through § 1983. His Fourth Cause of Action, “violation of 42 U.S.C.
§ 1983,” only requests a monetary award “for the deprivation of Plaintiff’s
constitutional rights.” Because it is not pled as a cause of action in the
complaint, we need not address whether § 1983 may be used to enforce
the IDEA.
3
The facts related to this background discussion are derived from the
Amended Complaint.
PRESCHOOLER II v. DAVIS 3331
known as Kids Intensive Delivery of Services (KIDS) at the
Betsy Rhodes School in Clark County, Nevada. The program
was staffed by one teacher, Kathleen LiSanti, and various
teacher assistants.
LiSanti allegedly physically abused Preschooler II on
repeated occasions. The claimed abuses started in September
2002, and continued until early April 2003. Preschooler II
transferred to another elementary school soon after. The
alleged incidents of abuse are as follows:4
(1) “Preschooler II was assaulted at circle time by Defen-
dant LiSanti, when Defendant LiSanti grabbed Plaintiff Pre-
schooler II’s hands and slapped him repeatedly . . . .” LiSanti
beat Preschooler II, hitting his head and face. This event was
especially traumatic for Preschooler II because of his tuberous
sclerosis diagnosis, which causes tumors in the eyes and
brain. Preschooler II alleges that LiSanti admitted wrongdoing
when she later “apologized for this assault and battery . . . .”
(2) LiSanti maliciously body slammed Preschooler II into
a chair, an event witnessed by a detective who testified at Pre-
schooler II’s administrative hearing.
(3) On four occasions, LiSanti forced Preschooler II to
“walk without shoes across the asphalt” from the school bus
to the classroom.
(4) On one occasion, LiSanti documented in writing
noticeable bruising to Preschooler II’s arms. Beyond the
bruises documented by LiSanti, Preschooler II sustained
unspecified bruising to the inner thigh regions in addition to
a thick fingernail scratch to his neck region.
4
Preschooler II alleges that informally consolidated discovery in Pre-
schooler I’s case has revealed further related acts of abusive and deliber-
ately indifferent behavior. These additional facts are not appropriately
considered at this stage of proceedings; our analysis is limited to the
pleadings.
3332 PRESCHOOLER II v. DAVIS
Preschooler II alleges that the School Officials were on
notice of the violent and unlawful conduct ongoing in the
classroom before and during the time Preschooler II was
abused, and that they failed to act to prevent further harm to
him. Preschooler II’s Amended Complaint relates several
events to support the notice allegation. These incidents alleg-
edly provided notice of the ongoing abuses to the school prin-
cipal, Darryl Wyatt, and district personnel who, according to
Preschooler II, failed to report the incidents as required by
statute, or to correct the situation. In addition to Wyatt, Com-
pliance Director Michael Harley, Associate Superintendent
Charlene Green, Superintendent Carlos Garcia, and Special
Education Specialist Kay Davis allegedly knew of and failed
to report or remediate possible child abuse of Preschooler II.
Preschooler II’s mother was suspicious that something was
negatively affecting the child at school because he had begun
to develop violent behavior not previously exhibited. None-
theless, she was not informed of any of the specific alleged
abuses until early April 2003, when Principal Wyatt first told
her that her son had been battered by LiSanti. LiSanti appar-
ently was trying to teach Preschooler II not to swat himself,
a behavior incident to his disability. Months after the first
abuse report, LiSanti was placed on administrative leave.
After unsuccessful administrative proceedings, Preschooler
II’s mother filed suit in federal court. Preschooler II’s eight
causes of action are as follows: (1) Petition for Judicial
Review, Declaratory and Equitable Relief, and Claim for
Attorney’s Fees and Costs; (2) Violation of the Americans
with Disabilities Act; (3) Violation of the Rehabilitation Act;
(4) Violation of 42 U.S.C. § 1983 Based on the Fourth and
Fourteenth Amendments; (5) Monnel/Canton Claims; (6)
Assault, Battery and Use of Aversive Interventions; (7) Negli-
gence Claims; and (8) Negligent Failure to Report.
The School Officials moved to dismiss Preschooler II’s
second, third, fourth, fifth and eighth causes of action for fail-
PRESCHOOLER II v. DAVIS 3333
ure to state a claim upon which relief can be granted. They
also asserted qualified immunity with respect to the fourth
cause of action, § 1983. In addition, the motion requested a
declaratory judgment that the enforcement provisions of the
Nevada Reporting Statute, § 388.521, are not “state educa-
tional requirements” under the IDEA.
The district court denied the motion to dismiss as to all
claims, denied qualified immunity, and declined to reach
whether Nevada’s reporting requirements were incorporated
into the IDEA. The court determined that qualified immunity
was not warranted because Preschooler II had alleged conduct
sufficient to support a claim for constitutional deprivation
under the Fourth and Fourteenth Amendments and violations
of clearly established law. See Roe v. Nevada, 332 F. Supp.
2d 1347 (D. Nev. 2004). School Officials LiSanti, Wyatt,
Garcia, Green, Harley, and Davis filed this interlocutory
appeal on the qualified immunity issue.
ANALYSIS
We review de novo the district court’s denial of qualified
immunity. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.
2002) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994)).
Government officials do not enjoy qualified immunity from
civil damages if their conduct violates “clearly established
constitutional or statutory rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1987).
In analyzing whether the School Officials are entitled to
qualified immunity, we address two sequential questions.
First, we inquire whether, taken in the light most favorable to
the party asserting the injury, that party has established a vio-
lation of a federal right. See Saucier v. Katz, 533 U.S. 194,
201 (2001). Assuming this threshold inquiry is satisfied, we
consider whether the School Officials’ conduct violated
“clearly established statutory or constitutional rights of which
3334 PRESCHOOLER II v. DAVIS
a reasonable person would have known.” Hope v. Pelzer, 536
U.S. 730, 739 (2002) (quoting Harlow, 457 U.S. at 818). The
clearly established test is satisfied if “in light of pre-existing
law the unlawfulness [is] apparent.” Id. Qualified immunity
will not protect the “plainly incompetent” or those “who
knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224(1991) (quotations omitted).
I. PHYSICAL ABUSE OF PUBLIC SCHOOL STUDENT—
DEFENDANT LISANTI
[1] Our initial task is to determine whether the physical
abuse allegations rise to the level of constitutional violations.
We begin with the principle “that excess force by a [school
official] against a student violate[s] the student’s constitu-
tional rights.” P.B. v. Koch, 96 F.3d 1298, 1302-03 (9th Cir.
1996). The consequences of a teacher’s force against a student
at school are generally analyzed under the “reasonableness”
rubric of the Fourth Amendment, although historically courts
applied substantive due process analysis under the Fourteenth
Amendment’s “shocks the conscience” test. See Doe, 334
F.3d at 908-09 (9th Cir. 2003) (quoting New Jersey v. T.L.O.,
469 U.S. 325, 342 (1985)) (applying the Fourth Amendment
in the school context, requiring reasonableness to be assessed
“in light of the age and sex of the student and the nature of
the infraction,” and explaining the movement from substan-
tive due process to Fourth Amendment review).
[2] The teacher’s seizure of Preschooler II and her alleged
slapping, forced participation in self-beating and slamming
were unreasonable in light of the child’s age and disability
and the context of the events. Preschooler II posed no danger
to anyone nor was he disruptive in the classroom. At such a
young age and suffering from significant and serious disabili-
ties, autism as well as tuberous sclerosis, Preschooler II was
even more vulnerable than the average pre-school child.
[3] The School Officials belittle the allegations and claim
that LiSanti’s conduct cannot be considered anything more
PRESCHOOLER II v. DAVIS 3335
than, at the very worst, “a failure to conform to best prac-
tices.” This effort to candycoat the claims ignores the court’s
obligation to accept the allegations as true and to characterize
the alleged abuses in the light most favorable to Preschooler
II. See Saucier, 533 U.S. at 201. When so construed, the beat-
ing, slapping, and slamming of Preschooler II by LiSanti vio-
lated the Fourth Amendment’s prohibition of the use of
excessive force against public schoolchildren.
The School Officials seek to distinguish LiSanti’s head
beating and slamming from the abuse imposed by the teacher
in Doe who taped a healthy second grade boy’s head to a tree
for five minutes, and from the hitting and punching of several
high school students challenged in Koch. The fact that Pre-
schooler II is so severely disabled and was so young at the
time of the abuse renders LiSanti’s alleged conduct equally
disturbing.
Unlike the teacher in Doe who abused the student in a sin-
gle and relatively short incident, 334 F.3d at 908, LiSanti’s
abusive conduct allegedly occurred over a period of months.
Preschooler II’s mother alleges that the full extent of the
abuse is not known, and Preschooler II cannot be counted on
to report it since he was so young at the time and is non-
verbal as a result of his autism. Koch involved physical force
by a school principal for purportedly disciplinary reasons. The
case is instructive in its conclusion that the force allegedly
used “bears no reasonable relation to the need.” 96 F.3d at
1304. Similarly, there was no need here for the claimed exces-
sive force.
Although the abuse in Doe and Koch varies in degree and
detail from the allegations here, those cases do not set a floor
for benchmarking reasonable conduct. Nor do they serve as
bookends that require us to shoehorn Preschooler II’s case
between them. Rather, the cases point to the need to look
objectively at the specific circumstances of the school and
child. “There need not be a case dealing with these particular
3336 PRESCHOOLER II v. DAVIS
facts to find [a school official’s] conduct unreasonable.” Doe,
334 F.3d at 910 (citing Headwaters Forest Def. v. County of
Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002)).
[4] The allegations of beating and slamming Preschooler II
stand in stark contrast to the claims regarding unspecified
bruises, scratches, and shoeless walks. The unexplained
bruises and scratches, without more, do not rise to the level
of a recognized constitutional violation. Under the Fourth
Amendment, making a child walk from the bus without his
shoes was not unreasonable, either as excessive force or
abuse. The teacher was simply attempting to teach Pre-
schooler II not to remove his shoes on the bus.5 Although the
parties dispute the pedagogical basis for this “lesson,” we do
not need to go down that path. Our review is limited to the
constitutional challenge.
II. CLEARLY ESTABLISHED LAW PROHIBITING PHYSICAL
ABUSE OF PUBLIC SCHOOL STUDENTS—DEFENDANT LISANTI
[5] By 2002-2003 when Preschooler II was allegedly
abused, the right of public school students to be free from
excessive force imposed by their teachers was uncontroverted.
As early as 1977, the Supreme Court stated that public school
students have a constitutional due process right “to be free
from, and to obtain judicial relief for, unjustified intrusions on
personal security.” Ingraham v. Wright, 430 U.S. 651, 673
(1977). Even though the Court in Ingraham did not grant cer-
tiorari regarding the specific question of whether unreason-
able corporal punishment violates substantive due process
5
In Doe, we noted that “it may be possible for a school official to use
excessive force against a student without seizing or searching the student,
and that the Fourth Amendment would not apply to such conduct.” 334
F.3d at 909. Even assuming a legitimate due process claim under the Four-
teenth Amendment, it takes no further analysis to conclude that these
actions do not “shock the conscience.” See, e.g., Rochin v. California, 342
U.S. 165, 172 (1952) (explaining the substantive due process “shocks the
conscience” standard).
PRESCHOOLER II v. DAVIS 3337
under the Fourteenth Amendment, it was plain that students
have a liberty interest in freedom from unreasonable restraint
and mistreatment. Nearly twenty years later, the Court
described Ingraham as standing for the proposition that while
“children sent to public school are lawfully confined to the
classroom, arbitrary corporal punishment represents an inva-
sion of personal security to which their parents do not consent
when entrusting the educational mission to the State.” Sandin
v. Conner, 515 U.S. 472, 485 (1995).
In reliance on Ingraham, the Ninth Circuit, as well as a
number of other circuits, held that excessive and unreasonable
corporal punishment of public school students violates the
students’ constitutional rights. See Koch, 96 F.3d at 1304(concluding that teacher’s use of excessive force with high
school students in 1990 and 1991 violated plaintiffs’ substan-
tive due process rights); see also Metzger v. Osbeck, 841 F.2d
518, 520 (3d Cir. 1988) (holding excessive force in public
school context is a violation of substantive due process guar-
anteed by the Fourteenth Amendment); Wise v. Pea Ridge
Sch. Dist., 855 F.2d 560, 565 (8th Cir. 1988) (same); Webb
v. McCullough, 828 F.2d 1151, 1159 (6th Cir. 1987) (same);
Garcia v. Miera, 817 F.2d 650, 653 (10th Cir. 1987) (same);
Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980) (same).
Following Ingraham, the Supreme Court determined that
allegations of excessive force in § 1983 actions should be ana-
lyzed under a more specific constitutional provision, rather
than through generalized notions of substantive due process.
See Graham v. Connor, 490 U.S. 386, 394 (1989). As a con-
sequence, we now typically analyze excessive force allega-
tions against public school students under the Fourth
Amendment. See Doe, 334 F.3d at 908, 909 (“[We] have rec-
ognized the movement away from substantive due process
and toward the Fourth Amendment . . . . It is clear that the
Fourth Amendment applies in the school environment.”) (cita-
tions omitted).
3338 PRESCHOOLER II v. DAVIS
[6] In light of the clear constitutional prohibition of exces-
sive physical abuse of schoolchildren, and the heightened pro-
tections for disabled pupils, no reasonable special education
teacher would believe that it is lawful to force a seriously dis-
abled four year old child to beat himself or to violently throw
or slam him. Existing law plainly prohibits excessive hitting,
dragging or throwing of public school children. See Koch, 96
F.3d at 1304 (“no reasonable [school official] could think it
constitutional to intentionally . . . slap . . . and slam students
. . . .”). Therefore, LiSanti is not entitled to qualified immu-
nity for the alleged head beating and slamming assaults on
Preschooler II.
III. SUPERVISORY LIABILITY—SCHOOL OFFICIALS
Preschooler II alleges that Superintendent Garcia, adminis-
trative personnel Green, Davis, and Harley, and Principal
Wyatt are individually liable under § 1983 for their inaction
in the training, supervision and control of LiSanti. He also
alleges that the School Officials showed a reckless and cal-
lous indifference to the rights of Preschooler II and other sim-
ilarly situated preschoolers by permitting LiSanti to continue
to work with Preschooler II, knowing she posed a safety risk
to the children, and by not reporting or remediating the
alleged abuse when they became aware of it.
[7] Although there is no pure respondeat superior liability
under § 1983, a supervisor is liable for the acts of his subordi-
nates “if the supervisor participated in or directed the viola-
tions, or knew of the violations [of subordinates] and failed to
act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989). At this early stage of the proceedings, Preschooler
II does not need to show with great specificity how each
defendant contributed to the violation of his constitutional
rights. Rather, he must state the allegations generally so as to
provide notice to the defendants and alert the court as to what
conduct violated clearly established law. See Hydrick v.
Hunter, 466 F.3d 676, 689-90 (9th Cir. 2006) (denying
PRESCHOOLER II v. DAVIS 3339
policy-making officials qualified immunity at the motion to
dismiss stage based on inferences that the officials played an
instrumental role in the alleged abuses). Preschooler II’s alle-
gations are sufficiently specific to meet this pleading require-
ment.
[8] The Amended Complaint details the allegations of
abuse, the role of the School Officials, the knowledge and
reporting duty of the officials, and their failure to report or
take corrective action. Preschooler II alleges that the School
Officials ratified a custom that subjected Preschooler II to an
educational environment in which he was physically and emo-
tionally abused, in part by failing to train special education
teachers, or to hire qualified individuals to work in special
education classrooms. He also alleges that the officials abdi-
cated their duty to report and discipline LiSanti when they
first became aware of the alleged abuses. Whether Pre-
schooler II ultimately will be able to establish the claimed
knowledge or “blind eye” acquiescence in the alleged abuse
is uncertain, but given the liberal requirements of notice
pleading, no further specificity is expected of the complaint.
Under the Ninth Circuit’s limited supervisory liability doc-
trine, Preschooler II’s allegations against the supervisory
school official defendants constitute a violation of constitu-
tional law sufficient to satisfy step one of the Saucier analy-
sis.
IV. CLEARLY ESTABLISHED UNLAWFULNESS OF FAILURE TO
REMEDIATE—SCHOOL OFFICIALS
[9] It has long been clearly established that “[s]upervisory
liability is imposed against a supervisory official in his indi-
vidual capacity for his own culpable action or inaction in the
training, supervision, or control of his subordinates, for his
acquiescence in the constitutional deprivations of which the
complaint is made, or for conduct that showed a reckless or
callous indifference to the rights of others.” Menotti v. City of
Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005) (quoting Larez
3340 PRESCHOOLER II v. DAVIS
v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). We
have also held that a person “subjects” another to the depriva-
tion of a constitutional right, within the meaning of § 1983,
“if he does an affirmative act, participates in another’s affir-
mative act, or omits to perform an act which he is legally
required to do that causes the deprivation of which complaint
is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)
(citing Sims v. Adams, 537 F.2d 829 (5th Cir. 1976)). The req-
uisite causal connection may be established when an official
sets in motion a “series of acts by others which the actor
knows or reasonably should know would cause others to
inflict” constitutional harms. Id.[10] The alleged acts and omissions on the part of the
School Officials, if proven true, establish that they are liable
for the violation of Preschooler II’s clearly established consti-
tutional rights because they demonstrated disregard of their
responsibilities in hiring, training, supervising, disciplining
and reporting abuses committed by LiSanti. The physical
abuse allegations here do not concern IDEA violations or
some obscure and abstract legal requirements. Instead, a rea-
sonable special education school official would know that
LiSanti’s alleged abusive conduct, and the failure of other
special education officials to address that conduct, are
grounds for liability. For these reasons the district court prop-
erly denied qualified immunity to the School Officials.
AFFIRMED as to the denial of qualified immunity on the
head beating and slamming claims; REVERSED as to the
denial of qualified immunity on the unexplained bruises,
scratches, and shoeless walks claims; and REMANDED for
further proceedings. The parties shall bear their own costs on
appeal.