L.M.S., Jr. v. Perry County Board of Education
MEMORANDUM OPINION AND ORDER ON SUMMARY JUDGMENT, granting 40 Motion for Summary Judgment. Signed by Judge Callie V. S. Granade on 11/15/2013. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
L.M.S., JR., through and by his
mother and next of kin Denna
PERRY COUNTY BOARD OF
EDUCATION, et al.,
Civil Action No. 12-0109-CG-M
MEMORANDUM OPINION AND ORDER ON
On December 14, 2011,1 a substitute teacher at Francis Marion High
noticed that a school-owned laptop had gone missing from the computer lab.
After a brief investigation, it was determined that Plaintiff L.M.S. Jr. had
taken the computer. The assistant principal in charge of discipline,
Defendant Cathy Trimble, wasn’t at work that day, so another teacher at the
school had to handle the situation. That teacher (who is not a party to this
action) decided to suspend L.M.S. for burglary pending a formal disciplinary
hearing with the superintendent of education.
When Trimble returned to work the next day, she held a meeting with
L.M.S. and his mother, Denna Billingsley. L.M.S. denied that he took the
On summary judgment the court must resolve the dispute over this date in
favor of the nonmovant.
computer and told Trimble to go speak with several students who would
vouch for his innocence. Trimble interviewed all of those students and had
them put their statements in writing. Trimble did not, however, modify the
suspension. Thus, L.M.S. remained suspended pending a hearing with the
Due to a breakdown in communication between the school and the
superintendent, L.M.S.’s superintendent-level hearing was not held until
February 1, 2012. At that hearing, the superintendent (who is not a party to
this action) decided that L.M.S. had taken the computer and suspended him
for 25 school days with credit for time served.
L.M.S. and his mother opted to challenge the superintendent’s decision
at a hearing in front of the Perry County Board of Education. At that hearing,
which was held on February 14, the Board unanimously upheld the
On February 24, two days before his suspension would have ended,
L.M.S.’s mother withdrew him from Francis Marion High School and enrolled
him at Greensboro High School in Hale County. A few weeks later, L.M.S.
filed this lawsuit against the Board, the board members in their individual
capacities, and Trimble in her individual capacity. The matter comes before
the court on an unopposed2 motion for summary judgment filed by all the
defendants. (Doc. 40.)
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted “if the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of
law.” The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–
On a motion for summary judgment, the movant bears the initial
burden of proving that no genuine issue of material fact exists. O’Ferrell v.
United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the
movant’s arguments, the court must view all evidence and resolve all doubts
in the light most favorable to the nonmovant. Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir.1999). “If reasonable minds might differ on the
inferences arising from undisputed facts, then [the court] should deny
summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d
1532, 1535 (11th Cir.1989).
Despite having been given several chances to do so, L.M.S. never responded
to the motion for summary judgment. (See Doc. 48 (ordering L.M.S. to show
cause why the motion for summary judgment should not be considered
“[T]he district court cannot base the entry of summary judgment on
the mere fact that the motion was unopposed, but, rather, must consider the
merits of the motion.” United States v. One Piece of Prop., 5800 S.W. 4th
Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). But the court “need
not sua sponte review all of the evidentiary materials on file at the time the
motion is granted;” instead, it must only “ensure that the motion itself is
supported by evidentiary materials.” Id.
The Initial Suspension (Count I)
L.M.S.’s first claim focuses on the three-week period between his initial
suspension and his hearing with the superintendent. L.M.S. says he should
have received a formal hearing sooner, and that Trimble’s failure to give him
one violated his due-process rights and deprived him of his right to an
But Trimble, the only defendant named in Count I, was not at school
on the day the computer went missing, so she had no say in the initial
decision to suspend L.M.S. And although someone at Francis Marion High
forgot to notify the superintendent of the need to schedule a hearing, there is
no evidence that Trimble was to blame for that failure. Without some
evidence that Trimble was personally responsible for the delay between
L.M.S.’s initial suspension and his superintendent-level hearing, there is no
factual basis for holding her liable for that delay in her individual capacity.
Accordingly, summary judgment is due on Count I because there are no
genuine issues of material fact that would support the denial of summary
The Board-Level Hearing (Counts II-IV)
The rest of L.M.S.’s claims have to do with his hearing in front of the
Board. L.M.S. says the defendants violated his rights to procedural and
substantive due process and that they intentionally deprived him of his
substantive right to an education. But those claims are based on three factual
premises that have no evidentiary support.
First, L.M.S. says the defendants “utter[ly] fail[ed]” to give him
advance notice of the witness statements that were offered at the board-level
hearing. (Doc. 1 ¶ 28.) The court need not decide, however, whether L.M.S.
was constitutionally entitled to such notice because the evidence shows that
he did receive advance notice of the statements; all the statements the Board
considered were offered at L.M.S.’s superintendent-level hearing, so L.M.S.
received actual notice of their existence and contents on February 1, two
weeks before the board-level hearing.
Next, L.M.S. says he asked Trimble to take the statements of five
unnamed students and that Trimble refused to do so. Again, the court need
not decide whether Trimble was legally bound to take statements from those
students because the evidence shows that she did take statements from every
student L.M.S. identified. Likewise, the court need not decide whether the
Board was obligated to consider those statements because the Board did
consider those statements.
Finally, L.M.S. says the Board refused to view a surveillance video
that would have proved his innocence. Here there is a grain of truth; at the
board-level hearing, the Board relied on Trimble’s description of the video’s
contents instead of viewing the video itself. But the evidence also shows that
L.M.S. conceded that Trimble’s description was accurate, and neither L.M.S.
nor his mother asked the Board to view the video. Accordingly, the court need
not consider whether the Board would have violated L.M.S.’s rights if it had
refused to view the video because there’s no evidence of such a refusal;
instead, it seems that the only reason the Board did not view the video is that
no one asked it to.
Accordingly, even assuming the legal premises of L.M.S.’s claims in
Counts II-IV are sound (a question on which the court expresses no opinion),
those claims all lack sufficient evidentiary support to create a genuine issue
of material fact.
It is therefore ORDERED that the defendants’ motion for summary
judgment (Doc. # 40) is GRANTED. An appropriate judgment will follow.
DONE and ORDERED this 15th day of November, 2013.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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