Wells v. Ayers et al
MEMORANDUM OPINION AND ORDER re 20 Defendants' Motion for Judgment on the Pleadings- For the reasons stated herein, the Motion will be GRANTED in part and DENIED in part. The Motion is GRANTED as follows: Count One is DISMISSED with prejudice to the extent that it attempts to set out a claim for violation of the Plaintiff's procedural due process rights; Etowah Middle School is DISMISSED with prejudice; All other Defendants, except Ayers and Johnson, are DISMISSED without prejudice; Count Three is DISMISSED without prejudice as to the Board; Count Three is DISMISSED with prejudice as to all other Defendants; The Motion for Judgment on the Pleadings is DENIED in all other respects. Signed by Judge Virginia Emerson Hopkins on 11/9/17. (SAC )
2017 Nov-09 AM 11:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LEONA WELLS, individually and as )
next friend of C.M.H, a minor,
) Case No.: 4:17-CV-0068-VEH
NATHAN AYERS, JEFF
JOHNSON, ETOWAH MIDDLE
SCHOOL, ATTALLA BOARD OF )
EDUCATION, DAVID BOWMAN, )
WYMAN CASH, GARY HUFF,
PRESTON NIX, DEBORAH
DIXON, and DUANE SMITH,
MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, Leona Wells, on her own behalf, and
“as Mother and Next Friend of C.M.H., a Minor.” (Doc. 1 at 1). The Complaint names
the following Defendants: Nathan Ayers, the Assistant Principal of Etowah Middle
School; Jeff Johnson, the Principal of Etowah Middle School; the Etowah Middle
School; the Attalla Board of Education (the “Board”); and David Bowman, the
Superintendent of Attalla City Schools. The Complaint also names as Defendants the
following members of Attalla City Schools Board of Education: Wyman Cash, Gary
Huff, Preston Nix, Deborah Dixon, and Duane Smith. The Complaint alleges that all
of the Defendants are liable under 42 U.S.C. § 1983 for “Violation of Substantive Due
Process Rights.” (Count One). Against Ayers alone, the Complaint sets out claims
under Alabama law for battery, negligence, and wantonness. (Counts Two, Four, and
Five respectively). Against Johnson, Bowman, the Etowah Middle School, and the
Board, the Complaint sets out the Alabama state law claim for negligent supervision
and training. (Count Three).1 Finally, the Complaint alleges that all of the Defendants
engaged in a conspiracy to commit battery. (Count Six). All Counts arise out of a
paddling which Ayers administered to C.M.H.
The case comes before the Court on the Defendants’ Motion for Judgment on
the Pleadings (the “Motion”). (Doc. 20). For the reasons stated herein, the Motion will
be GRANTED in part and DENIED in part.
THE PLAINTIFF CONSENTS TO THE DISMISSAL OF ALL
DEFENDANTS EXCEPT AYERS AND JOHNSON, AND TO THE
DISMISSAL OF COUNT THREE IN ITS ENTIRETY
Based on the representations by the Plaintiff (doc. 21 at 1-2), all Defendants
except Ayers and Johnson will be dismissed. All dismissals, except for Etowah Middle
School, will be without prejudice. Etowah Middle School will be dismissed with
prejudice. Furthermore, the Plaintiff agrees that Count Three, the negligent supervision
This Count is also brought against an entity named “Attalla Schools,” which is not a
Defendant in this case.
claim, is due to be dismissed as well. (Doc. 21 at 9). That claim will be dismissed with
prejudice as to all Defendants except the Board. (See doc. 21 at 9, n. 10). Count Three
will be dismissed without prejudice as to the Board.
Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the
pleadings are closed--but early enough not to delay trial--a party may move for
judgment on the pleadings.” FED. R. CIV. P. 12(c). The Eleventh Circuit has stated:
“Judgment on the pleadings is appropriate where there are no material
facts in dispute and the moving party is entitled to judgment as a matter
of law.” [Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir.
2014)] (quoting Cannon v. City of West Palm Beach, 250 F.3d 1299,
1301 (11th Cir. 2001)). We accept as true the material facts alleged in the
non-moving party's pleading and construe them in the light most favorable
to that party. Id. Judgment on the pleadings should be denied “[i]f a
comparison of the averments in the competing pleadings reveals a
material dispute of fact.” Id.
Prudential Ins. Co. of Am. v. Kopp, 658 F. App'x 564, 567 (11th Cir. 2016).
MATERIAL FACTS ALLEGED IN THE PLEADINGS
The Complaint alleges:
16. The Attalla Schools permits teachers to inflict corporal punishment
on their students.
17. The Attalla Schools ask for parents to sign documents permitting
the school to inflict corporal punishment.
One form of corporal punishment meted out at Attalla Schools is
19. Before paddling a student, the student must have previously
received at least four written conduct notices home for their parent to
Wells moved to Attalla before the 2016–17 school year.
21. She enrolled two children, including C.M.H., as students at Etowah
C.M.H. is an athletic child and an excellent student.
23. Wells signed documents which authorized Etowah Middle to
paddle C.M.H. provided that C.M.H. deserved paddling under the school
policies and the school provided Wells with notice beforehand.
On Friday September 9, 2016, C.M.H. licked his fingers in class.
The teacher misinterpreted C.M.H.’s actions as an obscene gesture.
26. C.M.H.—12 years old and unaware of any obscene significance of
his movements—denied doing anything wrong.
27. The teacher referred C.M.H. to Assistant Principal Ayers’s office
28. Ayers decided to paddle C.M.H. despite the fact that it was
C.M.H.’s first time to be in trouble at Etowah Middle and the offense
involved was, at best, minor, at worst, a mere miscommunication.
29. Assistant Principal Ayers did not speak to either Wells or Wells’s
husband before paddling C.M.H.
The paddling was witnessed by Principal Johnson.
Ayers hit C.M.H.
C.M.H. cried in pain.
Ayers waited sixty seconds and then hit C.M.H. again.
C.M.H. told his mother what happened when he got home.
35. Wells didn’t understand why C.M.H. was punished for such a
seemingly trivial misunderstanding.
36. For the rest of the evening, C.M.H. was in obvious pain but refused
to be examined.
37. The next day, while hanging pictures, C.M.H.’s shirt raised,
revealing dark bruises caused by Ayers’s paddle.
38. Wells was alarmed and took C.M.H. to Riverview Regional
Medical Center for treatment.
39. Early the next week, Wells met with Ayers and school nurse
40. Ayers did not apologize for beating C.M.H. and refused to look at
the pictures of C.M.H.’s bruising, stating that he was only doing his job.
41. As part of an ongoing criminal investigation into the incident,
C.M.H. was examined by his pediatrician and specialists in Birmingham.
42. These doctors confirmed that C.M.H.’s injuries were the result of
C.M.H. was afraid to go to school after the incident.
C.M.H.’s grades slipped from A’s and B’s to D’s and F’s.
45. C.M.H. suffered emotional trauma and often cries for no apparent
46. C.M.H. was subsequently diagnosed with PTSD, anxiety, and
depression as a result of child abuse. He is being treated with medication.
Ayers was arrested for child abuse on December 16, 2016.
48. The Attalla City Schools Board of Education sided with Ayers and
did not discipline him for his actions.
49. Etowah Middle and Attalla Schools continue to allow Ayers to
work in the school and paddle students.
(Doc. 1 at 4-6, ¶¶16-49).
The Answer alleges, in pertinent part:
The Defendants state that the discipline administered to C.M.H.
that is the basis of this lawsuit was done fully in compliance with the
Board’s policy, which provides as follows:
CHAPTER 5.00 - STUDENTS
In order to establish and maintain an educational climate
conducive to learning, the Board permits reasonable
corporal punishment of students in the schools of the School
Teachers shall be supported by the Board and administration
in their efforts to teach good citizenship by requiring proper
conduct. While teachers shall be reasonable in
student-related demands, they need not tolerate
disrespectful, boisterous, rough, and violent outbursts of
language and temper on the part of students.
In all cases, corporal punishment shall be administered in
accordance with the following guidelines:
In cases where a student maintains innocence
of the offense, a brief but adequate statement
of the reasons and supporting evidence shall be
given orally to the student with an opportunity
for the student to explain his/her sides of the
situation. Based upon all facts, if the situation
warrants it, corporal punishment may then be
administered without delay (see Due Process
The use of corporal punishment should follow
specific failures of other corrective measures
to improve student behavior. Teachers should
be prepared to provide information concerning
alternate corrective measures used.
A teacher, principal, or assistant principal may
punish corporally; but, only in the presence of
a principal or assistant principal (preferably the
same sex as the offender), who should be
informed beforehand of the reasons for the
punishment. Principals or assistant principals
may administer corporal punishment in the
presence of either or a member of the certified
The instrument used to corporally punish
should be wisely selected and approved by the
Corporal punishment should not include more
than three (3) licks administered to the
buttocks. Other forms of corporal punishment
are not permitted in the schools of the School
Utmost care, tact, and judgment shall be
exercised; and all cases of corporal punishment
shall be documented by both the person
administering the punishment and the witness
and delivered to the principal. Such
documentation shall be submitted by the end of
the day the incident occurred.
School principals, assistant principals, or
teachers who have administered corporal
punishment shall provide the student’s parents
or guardians, upon request, a written
explanation of the reason(s) and the name of
Corporal punishment shall not be administered
in the visual presence of other students.
Those administering corporal punishment shall
consider the age, size, sex, and overall
physical condition of the student.
Corporal punishment shall not be administered
in anger or with malice.
(Doc. 17 at 5-7) (quoting doc. 17-1 at 1-2).
The Section 1983 Claim (Count One)
The Defendants argue that “excessive corporal punishment does not rise to the
level of a constitutional violation.” (Doc. 20 at 2-5, §I.). The Defendants provide their
only argument in the Motion itself. (Doc. 20). They have filed no reply brief.2
Count One is asserted against both Ayers and Johnson and states as follows:
51. Federal law grants relief to citizens who have been deprived of
their rights, privileges, or immunities by state actors. 42 U.S.C. § 1983.
52. C.M.H. has the statutory and common law right to free from
physical abuse and excessive corporal punishment at school.
53. C.M.H. was deprived of his rights by Defendants who were acting
under the color of law.
Ayers and Johnson administered the abusive punishment.
55. The punishment administered violated school policies concerning
the due process C.M.H. was due before the punishment was administered.
The punishment was immoderate in light of C.M.H.’s actions.
(Doc. 1 at 7, ¶¶51-56). This Count, although it is entitled “”Violation of Substantive
Due Process Rights under 42 U.S.C. § 1983” (doc. 1 at 7) could arguably be read to
set out a claim for a violation of both the Plaintiff’s substantive and procedural due
First, to the extent that any procedural due process claim is made, it is due to be
dismissed. See Ingraham v. Wright, 430 U.S. 651, 683, 97 S. Ct. 1401, 1419, 51 L. Ed.
2d 711 (1977); Neal ex rel. Neal v. Fulton Cty. Bd. of Educ., 229 F.3d 1069, 1074
According to the Court’s Uniform Initial Order, entered in this case on January 17, 2017,
“[t]he movant’s reply brief shall be filed no later than seven (7) calendar days after the date on
which the opponent’s responsive brief was due.” (Doc. 3 at 22).
(11th Cir. 2000) (noting that Ingraham held that state law remedies were adequate to
protect against deprivations without procedural due process); Nowell v. Dale Cty. Bd.
of Educ., 17 F. Supp. 3d 1134, 1140 (M.D. Ala. 2014) (Watkins, J.) (dismissing
procedural due process claim because “‘the Due Process Clause does not require notice
and a hearing prior to the imposition of corporal punishment in the public schools
[because corporal punishment] is authorized and limited by the common law[.]’”)
(quoting Ingraham, 430 U.S. at 682); Williams v. Fulton Cty. Sch. Dist., 181 F. Supp.
3d 1089, 1132 (N.D. Ga. 2016) (Totenberg, J.) (“Plaintiffs are not, however, permitted
to proceed on their second theory for their procedural due process claims, that
Defendants violated Alex's procedural due process rights by failing to follow proper
procedures before administering corporal punishment. Supreme Court precedent is
clear that ‘the Due Process Clause does not require notice and a hearing prior to the
imposition of corporal punishment,’ no matter how severe.”) (citing Ingraham, 430
U.S. at 682).
As to the substantive due process claim in Count One, the Eleventh Circuit has
The Due Process Clause protects individuals against arbitrary
exercises of government power, but “only the most egregious official
conduct can be said to be ‘arbitrary in the constitutional sense.’ ” County
of Sacramento v. Lewis, 523 U.S. 833, 845–46, 118 S.Ct. 1708, 1716,
140 L.Ed.2d 1043 (1998) (quoting Collins v. City of Harker Heights, 503
U.S. 115, 129, 112 S.Ct. 1061, 1071, 117 L.Ed.2d 261 (1992)). To be
arbitrary in the constitutional sense, an executive abuse of power must
“shock[ ] the conscience.” Id. at 846, 118 S.Ct. at 1717. “[T]he
constitutional concept of conscience shocking duplicates no traditional
category of common-law fault, but rather points clearly away from
liability, or clearly toward it, only at the ends of the tort law's spectrum of
culpability.” Id. at 848, 118 S.Ct. at 1717. The Due Process Clause does
not “impos[e] liability whenever someone cloaked with state authority
causes harm.” Id. “[C]onduct intended to injure in some way unjustifiable
by any government interest is the sort of official action most likely to rise
to the conscience-shocking level.” Id. at 849, 118 S.Ct. at 1718. Both this
Court and the Supreme Court have “said repeatedly that the Fourteenth
Amendment is not a ‘font of tort law’ that can be used, through section
1983, to convert state tort claims into federal causes of action.” Neal ex
rel. Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1074 (11th
Cir.2000); see also Lewis, 523 U.S. at 848, 118 S.Ct. at 1718.
Nevertheless, “excessive corporal punishment, at least where not
administered in conformity with a valid school policy authorizing corporal
punishment ... may be actionable under the Due Process Clause when it
is tantamount to arbitrary, egregious, and conscience-shocking behavior.”
Neal, 229 F.3d at 1075.
[A] claim of excessive corporal punishment has “an objective and
a subjective component, both of which must be met before a school
official may be subject to liability.” Neal, 229 F.3d at 1075 n. 3. The
evidence must support a reasonable inference that the punishment is
“obviously excessive” as an objective matter and that [the official]
“subjectively intend[ed] to use that obviously excessive amount of force
in circumstances where it was foreseeable that serious bodily injury could
result.” Id. To determine whether a use of force is “obviously excessive,
we consider the totality of the circumstances.” Id. at 1075. Three factors
are particularly relevant: “(1) the need for the application of corporal
punishment, (2) the relationship between the need and amount of
punishment administered, and (3) the extent of the injury inflicted.” Id. .
. . Neal [also] instructs us to consider the totality of the circumstances .
“[I]f the use of force was objectively reasonable—that is, if it ‘was
not excessive as a matter of law and was a reasonable response to the
student's misconduct’—then the subjective intent of the school official is
unimportant.” Id. (quoting Wise v. Pea Ridge Sch. Dist., 855 F.2d 560,
563 n. 4 (8th Cir.1988)). Consequently, evidence as to [the official’s]
subjective intent does not affect our determination of whether, viewed
objectively, the circumstances provided [the official] with a reason to use
T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cty., Fla., 610 F.3d 588, 599-600 (11th
Cir. 2010).3 Accordingly, under binding authority, the Motion is due to be denied as to
The Defendants do not cite to T.W. or Neal in support of their arguments. They merely
“Corporal punishment itself is not arbitrary, capricious, or unrelated to legitimate
educational goals; therefore, it is not violative of substantive due process on its
face.” Gaither v. Barron, 924 F. Supp. 134, 136 (M.D. Ala. 1996) (citing Hale v.
Pringle, 562 F. Supp. 598, 600 (M.D. Ala. 1983), further citing Ingraham v.
Wright, 525 F.2d 909 (5 Cir. 1976) (en banc)). The Court noted in Gaither v.
The Court of Appeals, however, has clearly stated that it is not the
federal court’s duty to scrutinize when punishment in the classroom
is appropriate, nor to scrutinize the amount of punishment that is
due. Ingraham, 525 F.2d at 917. “It would be a ‘misuse of [federal]
judicial power [to look at each individual instance of punishment]
to determine whether a teacher had acted arbitrarily or excessively
in applying corporal punishment.’” Pringle, 562 F. Supp. at 600
(quoting Ingraham, 525 F.2d at 917). This does not mean that
teachers who inflict excessive corporal punishment go unchecked.
Rather, where state criminal and civil actions are available to
students exposed to such punishment, those state law remedies are
the appropriate check. . . . Because of the availability in Alabama of
state criminal and civil actions against a teacher who excessively
the substantive due process claim in Count One. The Court holds that the Plaintiff has
plausibly pled a claim for violation of her minor son’s substantive due process rights.
To the extent that it attempts to set out a substantive due process claim for excessive
corporal punishment, Count One will survive.4
The Remaining State Law Claims
As noted above, against Ayers alone, the Complaint sets out claims under
Alabama law for battery, negligence, and wantonness. (Counts Two, Four, and Five
respectively). The Complaint also alleges that Johnson and Ayers engaged in a
punishes a child, it would be a misuse of this court’s judicial power
to consider whether this particular instance of corporal punishment
was arbitrary or excessive. 924 F. Supp. at 136. (Emphasis added.
Bracketed alterations added in Gaither v. Barron.)
The Plaintiffs in this case pursued criminal charges against Defendant
Nathan Ayers in the Etowah County Circuit Court. The state law civil claims
alleged in this action are available to the Plaintiffs in that court as well. As the
Middle District noted, it would be a misuse of federal judicial power to litigate
whether the discipline C.M.H. allegedly received was excessive. All claims should
therefore be dismissed and the Plaintiffs should be required to pursue relief in State
(Doc. 20 at 2-3). As noted above, and by the Plaintiff in her brief, “Defendants’ position misstates
current Eleventh Circuit law.” (Doc. 21 at 10).
The Defendants do not argue that the Section 1983 claim cannot apply to Ayers’s
supervisor, Johnson. Accordingly, the Court will not address the Plaintiff’s argument on that
issue. (Doc. 21 at 13-14). The Plaintiff also argues that state agent immunity does not protect the
individual defendants for actions taken in their personal capacity. (Doc. 21 at 13-15). The Motion
asserts state agent immunity as to the individual defendants only in their official capacities. (Doc.
20 at 5-6). Accordingly, the Court need not address the Plaintiff’s argument on that point.
conspiracy to commit battery. (Count Six).5 The Defendants’ only argument for the
dismissal of these claims is that, if the Court dismissed the Section 1983 claims, it
should, pursuant to 28 U.S.C. § 1367, decline to exercise supplemental jurisdiction
over the remaining state law claims. Since the Court is not dismissing the Section 1983
claim, this argument is without merit.
Based on the foregoing, it is hereby ORDERED, ADJUDGED, and
DECREED as follows:
The Motion for Judgment on the Pleadings (doc. 20), is hereby
GRANTED as follows:
Count One is DISMISSED with prejudice to the extent that it
attempts to set out a claim for violation of the Plaintiff’s procedural
due process rights.
Etowah Middle School is DISMISSED with prejudice.
All other Defendants, except Ayers and Johnson, are DISMISSED
Count Three is DISMISSED without prejudice as to the Board.
Although the Complaint also sets out the Alabama state law claim for negligent
supervision and training against Johnson (Count Three), the Plaintiff has agreed to dismiss that
claim. (See supra § I).
Count Three is DISMISSED with prejudice as to all other
The Motion for Judgment on the Pleadings is DENIED in all other
DONE and ORDERED this 9th day of November, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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