Koontz v. Dustin et al

Filing 35

ORDER denying 21 Plaintiff's Motion for summary judgment; granting 25 Defendant's Motion for summary judgment; granting 26 Defendant's Motion for summary judgment. Signed by Senior Judge Wm. Terrell Hodges on 9/24/2010. (LRH)

Koontz v. Dustin et al

Doc. 35

UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF FLORIDA O C A L A DIVISION

T IN A KOONTZ, As Natural Guardian fo r JESSICA SORENSEN, P la in tiff, -vs K A T H E R IN E DUSTIN, in her individual a n d official capacities, and THE SCHOOL B O A R D OF SUMTER COUNTY, FLORIDA, D e fe n d a n ts . / C a s e No. 5 :0 9 -c v -1 4 7 -O c -1 0 G R J

O R D E R DETERMINING CROSS MOTIONS FOR SUMMARY JUDGMENT

This case involves the constitutionality of a search - - or threatened search - o f an eighth grade school student by her principal at a public school. The Plaintiff a lle g e s a violation of the Fourth and Fourteenth Amendments, and brings suit under 4 2 U.S.C. § 1983 seeking nominal damages, injunctive relief and attorneys fees. T h e Court has uncontested jurisdiction, and venue lies in this District and in this D i v i s io n . T h e parties have filed cross motions for summary judgment under Rule 56, and th e Court has determined that there is no genuine issue of material fact foreclosing s u m m a ry disposition. The case has been thoroughly briefed, oral argument has been h e a rd , and the matter is ready for decision.

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The Facts O n Monday, October 27, 2008, at the Sumter Middle School, Sumter County, F lo rid a , the Plaintiff1 boarded her assigned Sumter County school bus at the end of th e school day to be taken home. She was 13 years old and in the eighth grade. The b u s was being driven by Ms. Dana Orr. After initially loading the bus and departing th e school grounds, Ms. Orr was notified by cell phone that she should return to the s c h o o l to collect some additional student passengers. She did so. W h ile parked at t h e bus loading area at the school, Ms. Orr overheard a boy on the bus say to s o m e o n e that he, the boy, had a bomb in his book bag.2 U p o n hearing that remark, Ms. Orr reported it to Mr. Lorenzo Fields, Assistant P rin c ip a l, who was in the area observing the loading and departure of the buses. Ms. O rr identified the subject male student to Mr. Fields who then withdrew the boy from th e bus for questioning. The student did not dispute having made the statement about h a vin g a bomb but denied actual possession of any explosive device. A search of his p e rs o n and his book bag proved uneventful; no bomb was found. Nonetheless, Mr. F ie ld s notified the Principal, Katherine Dustin about what had happened, and she c a m e from her office to the school bus area within a few minutes.3
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The case was brought by Tina Koontz as Guardian for, and mother of, Jessica Sorensen. The term "Plaintiff" will be used to refer to the child, Jessica. There is some inconsistency in the record as to whether Ms. Orr overheard the statement or was told about it by another student on the bus. Either way, there is no dispute that the statement was made. The manner of its communication to Ms. Orr is immaterial. Mr. Fields had also attempted to communicate with the school resource officer, Deputy Greenwood, but he had already left the school for the day. Neither Ms. Dustin nor Mr. Fields made any other effort to notify law enforcement officials or trained bomb detection personnel before proceeding to search the students on the bus. The court does not consider that fact to be of any

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Upon arrival at the scene, Ms. Dustin learned from Mrs. Fields that the boy a d m it te d saying that he had a bomb but denied the truth of the statement, and a s e a rc h of his person and book bag had proved fruitless. Ms. Dustin concluded from M r. Fields' report that the boy's claim to have possession of a bomb was not credible. Nevertheless, she then boarded the bus. Her undisputed testimony about that is: A I think I was the one that stepped onto the bus. I spoke with the students on the bus and told them that he h a d admitted to making the bomb threat, that he wasn't a c c u s in g anybody else, and we wanted to make sure there w a s nothing that had been placed anywhere either in their s tu ff or on the bus before sending them home. **** A I told them that we were going to have them get o f f the bus and look through their book bags, purses, et c e te ra , and get - - and to make sure that there wasn't a n y th in g that had been placed there. Q S o how long after you made a n n o u n c e m e n t was it before the searching began? that

A R e la tiv e ly - - I'd asked the bus driver to check s e a t to seat, between the seats. W e had the students get o ff in single file line. I asked them to get off in single file lin e , and we went student to student. So within a minute or s o probably. Q A n d where did you conduct these searches?

A B e tw e e n the bus and the school building where it was parked near.

importance with respect to the constitutionality, or unconstitutionality, of the searches.

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W h e n Ms. Dustin reached the Plaintiff, who was among the last of the students w a itin g to be searched,4 the Plaintiff refused. Ms. Dustin then warned the Plaintiff that s h e could not be permitted to get back on the bus without being searched and that her re fu s a l would be a disciplinary matter. The Plaintiff persisted in her refusal and her b o o k bag and purse were not searched; they remained undisturbed and in her p o s s e s s io n at all times. The Plaintiff and the boy who had claimed to have a bomb w e re then separately escorted to the school office and their respective parents were c a lle d to come take them home. In the meantime, Ms. Orr had completed her fruitless s e a rc h of the bus itself, and the remainder of the students reboarded for departure to th e ir homes. The Plaintiff's father came to the school and the Plaintiff accompanied h im off the grounds. L a te r in the afternoon that same day, Ms. Dustin and Mr. Fields completed a S c h o o l Conduct Report concerning the Plaintiff. Under the heading "Description Of M is b e h a vio r," Ms. Dustin said: A n o th e r student on Jessica's bus made a bomb threat. In o rd e r to ensure that the bus students and their belongings w e re safe, the bus and all students and their belongings w e re searched. Jessica refused. I told her that I needed to b e able to search her book bag and purse in order to clear h e r and that by refusing it would be a discipline issue. She re fu s e d , so the bus left without her and I called her home. U n d e r the heading "Action Taken By Administration," signed by Mr. Fields with th e concurrence of Ms. Dustin, a check mark was placed by the entry "Assigned to In-

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The record does not disclose the exact number of students who were searched. The Plaintiff testified, however, that there were usually 40 to 50 children aboard. Ms. Orr testified to the same effect.

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School suspension 2 days," followed by the notation: "W e d n e s d a y 10-29 through T h u rs d a y 10-30-08." A n appeal was taken by the Plaintiff to the School Board's Superintendent of S c h o o ls concerning her in-school suspension. The appeal was denied and that was th e final decision on the issue. T h e Defendants emphasize that the Plaintiff lost no time or instruction in school, th a t her grades were unaffected,5 and that the record of her in-school suspension is n o t subject to disclosure to anyone (such as colleges or universities) seeking a copy o f her transcript. T h e Law It is appropriate to begin the legal analysis of the case by first taking up the D e fe n d a n t's argument that there was no constitutional violation of the Plaintiff's rights b e c a u s e (1) there was no search, and/or (2) the Plaintiff suffered no cognizable injury. Neither argument is persuasive. T o be sure, the Plaintiff was not subjected to a physical search, but her refusal - according to Ms. Dustin's express warning at the time - - resulted in a "disciplinary" in school suspension. For purposes of constitutional analysis, therefore, the case s h o u ld be treated as though the threatened search had occurred. Only in that way c a n it be determined whether the Plaintiff had a right to refuse the search on c o n s titu t io n a l grounds and, if so, whether the penalty imposed was valid or invalid. "It has long been established that a State may not impose a penalty upon those who

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The Plaintiff was a straight A student before the incident and remained so afterward.

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exercise a right guaranteed by the Constitution. Constitutional rights would be of little va lu e if they could be indirectly denied, or manipulated out of existence." Harman v. F o rs s e n iu s , 380 U.S. 528, 540, 85 S. Ct. 1177, 1185 (1965) (internal citations and q u o ta tio n s omitted). S im ila rly, the fact that the Plaintiff suffered no substantial injury in terms of loss o f school time, reduction in her grades, or an adverse notation in her public school re c o rd , is of no import. Anyone who suffers a constitutional infringement by a state a c to r is entitled, for that reason alone, to an award of nominal damages without proof o f actual injury. Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042 (1978); Fassett ex rel. F a s s e tt v. Haeckel, 936 F.2d 118 (2d Cir. 1991) (Fourth Amendment claim). And, h e re , the Plaintiff is seeking precisely that - - an award of nominal damages. In New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733 (1985), the Court settled th e law that school children enjoy the protection of the Fourth Amendment against u n re a s o n a b le searches and seizures, and that public school administrators are state a c to rs in carrying out searches on school grounds. The Court also held, however, that s u c h searches need not be justified by the usual standard of probable cause to b e lie ve that the subject of the search has violated or is violating the law. Rather, the c o n s titu tio n a lity of a search of a student depends on its reasonableness under all of th e circumstances. Accordingly, reasonable suspicion will ordinarily justify a

w a rra n tle s s search aimed at finding evidence of a violation of the law or school rules. T h e Plaintiff relies almost exclusively upon T.L.O. and argues that Ms. Dustin h a d no reasonable suspicion that the Plaintiff possessed a bomb when Ms. Dustin

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attempted to search her. On the contrary, Plaintiff contends, Ms. Dustin had already s a tis fie d herself that the bomb threat was not a credible one. The Plaintiff concludes, th e re fo re , that the threatened search was unconstitutional and that she had a right to re fu s e it without penalty. T h e Court concludes that the Plaintiff's reading and application of T.L.O. is too re s tric te d . W h ile it is clear that a search of a targeted student for the purpose of d is c o ve rin g evidence of a crime or violation of school rules must be supported by re a s o n a b le suspicion, the Court in T.L.O. was careful to exclude any articulation of the s p e c ific standard to be applied to searches conducted in other contexts. S p e c ific a lly , the Court said: W e do not decide whether individualized suspicion is a n essential element of the reasonableness standard we a d o p t for searches by school authorities. In other contexts, h o w e ve r, we have held that although `some quantum of in d iv id u a liz e d suspicion is usually a prerequisite to a c o n s titu tio n a l search or seizure. . . the Fourth Amendment im p o s e s no irreducible requirement of such suspicion.' (C ita tio n s Omitted) (Emphasis Supplied) ***** B e c a u s e the search of T.L.O.'s purse was based upon an in d iv id u a liz e d suspicion that she had violated school rules . . . we need not consider the circumstances that might ju s t if y school authorities in conducting searches u n s u p p o rte d by individualized suspicion. 4 6 9 U.S. at 342, n.8, 105 S. Ct. at 743, n.8. M o re recently, in Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. C t. 2386 (1995), and Board of Education of Independent School District No. 92 of P o tta w a to m ic County v. Earls, 536 U.S. 822, 122 S. Ct. 2559 (2002), the Court held

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that searches consisting of drug testing of students wishing to engage in e xtra c u rric u la r activities were reasonable in furtherance of the school's interest in d e te rrin g drug use; such searches did not require individualized suspicion that any p a r tic u la r student was engaged in drug abuse. The following passage from the C o u rt's opinion in Earls is especially instructive with respect to this case: G ive n that the School District's Policy is not in any way re la te d to the conduct of criminal investigations, see Part IIB , infra, respondents do not contend that the School District re q u ire s probable cause before testing students for drug u s e . Respondents instead argue that drug testing must be b a s e d at least on some level of individualized suspicion. See Brief for Respondents 12-14. It is true that we g e n e ra lly determine the reasonableness of a search by b a la n c in g the nature of the intrusion on the individual's p r iv a c y against the promotion of legitimate governmental in te re s ts . See Delaware v. Prouse, 440 U.S. 648, 654, 99 S . Ct. 1391, 59 L.Ed.2d 660 (1979). But we have long held th a t `the Fourth Amendment imposes no irreducible re q u ire m e n t of [individualized] suspicion.' United States v. M a rtin e z -F u e rte , 428 U.S. 543, 561, 96 S. Ct. 3074, 49 L .E d .2 d 1116 (1976). `[I]n certain limited circumstances, the G o ve rn m e n t's need to discover such latent or hidden c o n d itio n s , or to prevent their development, is sufficiently c o m p e llin g to justify the intrusion on privacy entailed by c o n d u c tin g such searches without any measure of in d iv id u a liz e d suspicion.' Von Raab, supra, at 668, 109 S. C t. 1384; see also Skinner, supra, at 624, 109 S. Ct. 1402. Therefore, in the context of safety and administrative re g u la tio n s , a search unsupported by probable cause may b e reasonable `when "special needs beyond the normal n e e d for law enforcement, make the warrant and probablec au s e requirement impracticable."' Griffin v. W is c o n s in , 483 U . S. 868, 873, 107 S. Ct. 3164, 97 L.Ed.2d 709 (1987) (q u o tin g T.L.O., supra, at 351 105 S. Ct. 733 (Blackman, J., c o n c u rrin g in judgment)); see also Vernonia, supra, at 653, 1 1 5 S. Ct. 2386; Skinner, supra, at 619, 109 S. Ct. 1402. S ig n ific a n tly, this Court has previously held that `special n e e d s ' inhere in the public school context. See Vernonia, 8

supra, at 653, 115 S. Ct. 2386; T.L.O., supra, at 339-340, 1 0 5 S. Ct. 733. W h ile schoolchildren do not shed their c o n s titu tio n a l rights when they enter the schoolhouse, see * * 2 5 6 5 Tinker v. Des Moines Independent Community S c h o o l Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L.Ed.2d 7 3 1 (1969), `Fourth Amendment rights . . . are different in p u b lic schools than elsewhere; the "reasonableness" inquiry c a n n o t disregard the schools' custodial and tutelary re s p o n s ib ility for children.' Vernonia, 515 U.S., at 656, 115 S . Ct. 2386. In particular, a finding of individualized s u s p ic io n may not be necessary when a school conducts d ru g testing.

W h e re , as in this case, a school yard search is conducted in good faith for the p u rp o s e of safety and security, as distinguished from a targeted search for evidence o f illegal activity, the Court has no hesitancy in concluding that reasonable or in d ivid u a liz e d suspicion is not required. In T.L.O. the Court said: [T ]h e legality of a search of a student should depend simply o n the reasonableness, under all the circumstances, of the s e a rc h . Determining the reasonableness of any search in v o lv e s a twofold inquiry: first, one must consider `whether th e . . . action was justified at its inception.' Terry v. Ohio, 3 9 2 U.S., at 20, 88 S. Ct., at 1879; second, one must d e te rm in e whether the search as actually conducted `was re a s o n a b ly related in scope to the circumstances which ju s tifie d the interference in the first place, ibid 4 6 9 U.S. at 341, 105 S.Ct. at 742-743. H e re , the Principal confronted a situation in which a student on a bus claimed to have possession of a bomb. In these days of heightened sensitivity to recurring o u tb re a k s of deadly violence in our schools,6 comments that might once have been

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See Boim v. Fulton County School District, 494 F.3d 978, 983-984 (11th Cir. 2001) (Judge Dubina discusses "This climate of increasing school violence and government oversight . . .").

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taken as foolish schoolboy exclamations must now be regarded as serious threats to s a fe ty and security.7 Thus, even though Ms. Dustin had formed the subjective belief th a t the instant threat was not credible, the objective circumstances clearly compelled a search that was justified at its inception. The fact that the boy who claimed

p o s s e s s io n of a bomb did not have any explosive device on his person did not exclude th e possibility that a bomb had been placed elsewhere on the bus or in another s tu d e n t's book bag. As Judge Dubina remarked in Boim, supra, "[w]e can only im a g in e what would have happened if the school officials, after learning of [the threat] d id nothing about it . . ." and the threat was then carried out with resulting death or s e rio u s bodily harm. 494 F.3d at 984. M o re o v e r, the Court concludes with equal comfort that the search as conducted b y Ms. Dustin "was reasonably related in scope to the circumstances which justified th e interference in the first place." T.L.O., quoted supra. The searches were carried o u t within a few minutes, were limited to the students on the bus, and were further lim ite d to their handbags or book bags where an explosive device might be concealed. This was reasonable. Indeed, anything less under the circumstances might well have b e e n regarded as irresponsible. T h e Court concludes, therefore, that there was no violation of the Plaintiff's F o u rth or Fourteenth Amendment rights and that the Defendants' motion for summary

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The Sumter County School Board has established written procedures governing telephone bomb threats containing the conspicuous command: "Do Not Discount Any Bomb Threat!"

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judgment (Doc. 26) will be granted. The Plaintiff's motion for summary judgment (D o c . 21) will be denied. Q u a lifie d Immunity T h e Defendant Dustin has filed a separate, alternative motion for summary ju d g m e n t (Doc. 25) on the ground that she is entitled to qualified immunity. A school official searching a student is `entitled to qualified im m u n ity where clearly established law does not show that th e search violated the Fourth Amendment' Pearson v. C a lla h a n , 555 U.S. ----, ----, 129 S.Ct. 808, 822, 172 L .E d .2 d 565 (2009). To be established clearly, however, t h e re is no need that `the very action in question [have] p re v io u s ly been held unlawful.' W ils o n v. Layne, 526 U.S. 6 0 3 , 615, 119 S. Ct. 1692, 143 L.Ed.2d 818 (1999). The u n c o n s titu tio n a lity of outrageous conduct obviously will be u n c o n s titu tio n a l, this being the reason, as Judge Posner h a s said, that `[t]he easiest cases don't even arise.' K. H. M o rg a n , 914 F.2d 846, 851 (C.A.7 1990). But even as to a c tio n less than an outrage, `officials can still be on notice t h a t their conduct violates established law . . . in novel fa c tu a l circumstances.' Hope v. Pelzer, 536 U.S, 730, 741, 1 2 2 S.Ct. 2508, 153 L.Ed.2d 666 (2002). S a ffo rd United School District v. Redding, (2 0 0 9 ). T h e Court has already determined, applying established Supreme Court ju ris p ru d e n c e , that the Plaintiff's constitutional rights were not violated. It necessarily fo llo w s , a fortiori, that there was no clearly established law in 2008 putting Defendant D u s t in on notice that her conduct toward the Plaintiff was in deprivation of the P la in tiff's constitutional rights. The Defendant Dustin is thus entitled to qualified im m u n ity even if it should be determined that the Court is wrong on the merits of the P la in tiff's claim. The Defendant Dustin's motion for summary judgment (Doc. 25) on 11 U.S. , 129 S. Ct. 2633, 2643

the ground of qualified immunity will also be granted as an alternative ground for the e n try of final judgment in her behalf. C o n c lu s io n 1. 2. T h e Defendants' motion for summary judgment (Doc. 26) is GRANTED. T h e Defendant's motion for summary judgment (Doc. 25) on the ground

o f qualified immunity is GRANTED. 3. 4. T h e Plaintiff's motion for summary judgment (Doc. 21) is DENIED. T h e Clerk is Directed to enter final judgment in favor of the Defendants

a n d against the Plaintiff with costs to be assessed according to law. IT IS SO ORDERED. D O N E and ORDERED at Ocala, Florida, this 24 th day of September, 2010.

C o p ie s to:

C o u n s e l of Record M a u rya McSheehy

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