McCarrick v. Schools, Lapeer Community et al
Memorandum and Order Granting Defendant's 28 Motion for Summary Judgment. Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 12-11654
LAPEER COMMUNITY SCHOOLS,
DEBBIE THOMPSON, TIMOTHY ZEEMAN,
and DANIEL RAYMOND, in their individual
and official capacities,
HON. AVERN COHN
MEMORANDUM AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 28)
This is a 42 U.S.C. § 1983 case arising out of an altercation between two students
at Lapeer West High School (“Lapeer West”) on April 13, 2010. Plaintiff Brandon McCarrick
(McCarrick) was assaulted by Defendant Daniel Raymond (Raymond) while both were
students at the high school. McCarrick contends that the school’s principal was aware that
Raymond was going to assault him and did nothing to prevent it. McCarrick is suing (1)
Lapeer Community Schools (“Lapeer”), (2) Debbie Thompson (Thompson), now-retired
former superintendent of Lapeer, (3) Timothy Zeeman (Zeeman), the principal at Lapeer
West, and (4) Raymond.1
McCarrick also sued Lapeer Community Schools Board of Education. The Court
entered a stipulated order dismissing the case against the Board of Education (Doc.
McCarrick’s complaint is in five counts, phrased by him as follows:
Assault and Battery (Raymond)2
Gross Negligence (Thompson and Zeeman)
Violation of the Child Protection Law, Mich. Comp. Laws § 722.6233
Violation of the Fourteenth Amendment (All but Raymond)
Supervisory Liability–42 U.S.C. § 1983 (All but Raymond)
Now before the Court is Defendants’4 motion for summary judgment on counts II, IV,
and V (Doc. 28). For the reasons that follow, the motion is GRANTED.
In large part, the underlying facts are not in dispute.
McCarrick and Raymond were both students at Lapeer West during the 2009-2010
school year. During this period, Zeeman was the principal of the school and Thompson
was the superintendent of the school district.
McCarrick testified at his deposition that, during this period, he and Raymond were
good friends. (Doc. 28-6 at 9–10, McCarrick Dep.). They hung out together, went hunting,
mud bogging,5 and cut wood together, among other things. (Id. at 10). In April of 2010,
Because of his failure to plead or otherwise defend, a Clerk’s Entry of Default was
entered against Raymond (Doc. 24).
On August 21, 2012, the Court entered an order dismissing Count III (Doc. 22).
For purposes of this order, “Defendants” refers to Lapeer, Thompson, and Zeeman,
the school district defendants.
McCarrick described mud bogging as “going out in your trucks in the mud in fourwheel drive, just tearing the fields up, or swamps, or little ponds.” (Doc. 28-6 at 10,
however, McCarrick’s and Raymond’s friendship soured. According to McCarrick, mutual
friends stole Raymond’s animal traps and blamed McCarrick. (Id. at 11). In addition,
McCarrick became involved with Raymond’s former girlfriend.
A. Raymond Visits Zeeman
On April 13, 2010, McCarrick and Raymond were both at school. Around 7:00 a.m.,
before the start of classes, Raymond went to see Zeeman in his office.
According to Zeeman, Raymond told him that he was upset because McCarrick was
spreading rumors that Raymond was dealing in marijuana. (Doc. 28-4 at 8, Zeeman Dep.).
Zeeman observed that Raymond was upset and frustrated. (Id.). Raymond told Zeeman
that he wanted to confront McCarrick and talk to him about the accusations. (Id. at 9).
Zeeman says he counseled Raymond and advised him that if the rumors were true, he
needed to address his behavior and end his involvement in such activities. Based on
Zeeman’s conversation with Raymond, he did not have the feeling that Raymond wanted
to physically harm McCarrick.
At the time Raymond was talking to Zeeman, Zeeman was aware that Raymond had
been involved in physical altercations with other students in the past. However, Zeeman
thought that Raymond had matured since his last altercation a year prior.
B. Raymond Assaults McCarrick
Around 11:40 a.m., at the time between the change of classes, Raymond assaulted
McCarrick in a hallway of the school. (Doc. 28-7 at 2, Incident Report). Raymond yelled
out “Hey You” twice, and when McCarrick turned, Raymond hit him in the side of the head.
Raymond hit McCarrick numerous times with his fists. (Id.). McCarrick suffered trauma to
the face and head, and he lost consciousness. (Id.).
Immediately after the altercation, McCarrick and Raymond were brought to the main
office. McCarrick was examined by Chris Sierakowski, a school official who was also an
Emergency Medical Technician (“EMT”). Sierakowski observed fresh, raised welts on
McCarrick’s face, pink/red in color. (Doc. 28-8 at 14, Sierakowski Dep.). Because
McCarrick was talking to Sierakowski and coherent, she did not deem it necessary to call
emergency personnel. (Id. at 16–17).
C. Zeeman Talks to Each Student
While they were in the main office after the altercation, Zeeman, with the help of
assistant principal Dean Rothgeb, talked separately to both McCarrick and Raymond.
Zeeman determined that Raymond assaulted McCarrick and that McCarrick was not an
active participant in the fight. (Doc. 28-4 at 22, Zeeman Dep.).
At one point, McCarrick says that Raymond started swearing at him in the office and
tried to attack him again. Raymond was taken to Zeeman’s office.
D. McCarrick’s Parents Arrive at School
McCarrick’s parents were contacted and informed about the altercation. The parties
dispute who contacted McCarrick’s parents.
Sierakowski says that a staff member
contacted McCarrick’s parents. McCarrick says he contacted his mother himself.
On arrival at the school, Zeeman told McCarrick’s parents what happened.
McCarrick’s step-father says that Zeeman told him that Raymond had indicated his intent
to assault McCarrick that morning.
McCarrick left the school with his parents who took him to get medical attention. He
was diagnosed with a cerebral concussion and closed head injury.
E. Raymond Disciplined
On the day of the altercation, Raymond was advised that he would be suspended
from school for five days, the maximum initial suspension allowed for fighting under the
school’s Student Code of Conduct. After an internal investigation, Zeeman recommended
to Thompson that Raymond be expelled from Lapeer Community Schools.
On April 26, 2010, an expulsion hearing was held. After the hearing, Thompson
expelled Raymond. Raymond later petitioned to be readmitted to Lapeer Community
Schools. His petition was denied.
McCarrick’s mother says she talked to Raymond on March 30, 2012. She says that
Raymond told her that Zeeman knew of Raymond’s intent to assault McCarrick, and that
Zeeman told Raymond that he was “the man.”
III. STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A moving party may meet that burden “by ‘showing’–that is,
pointing out to the district court–that there is an absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Revised Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits, or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support a fact.
Fed. R. Civ. P. 56(c)(1).
The revised Rule also provides the consequences of failing to properly support or
address a fact:
If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required
by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials–including the facts considered undisputed–show that
the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When the moving party has met its burden under Rule 56, “its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately
a district court must determine whether the record as a whole presents a genuine issue of
material fact, id. at 587, drawing “all justifiable inferences in the light most favorable to the
non-moving party,” Hager v. Pike Cnty. Bd. of Ed., 286 F.3d 366, 370 (6th Cir. 2002).
Defendants move to dismiss counts II (gross negligence), IV (violation of Fourteenth
Amendment) and V (supervisory liability). The Court considers each count in turn.
A. Count II (Gross Negligence)
Count II of the complaint is a state-law claim brought against Thompson and
Zeeman. McCarrick says that Thompson and Zeeman were grossly negligent in allowing
him to be assaulted by Raymond. McCarrick’s gross negligence claim fails against both
Thompson and Zeeman as a matter of law.
1. Thompson is absolutely immune.
Under Mich. Comp. Laws § 691.1407(5), “the elective or highest appointive
executive official of all levels of government [is] immune from tort liability for injuries to
persons or damages to property if he or she is acting within the scope of his or her . . .
executive authority.” At the time of the incident, Thompson was the superintendent of
Lapeer Community Schools. McCarrick has not proffered any evidence that Thompson
was not acting within the scope of her authority. Thus, Thompson is absolutely immune
from tort liability under § 691.1407(5). Nalepa v. Plymouth-Canton Cmty. Sch. Dist., 207
Mich. App. 580, 589 (1994) (“[W]e conclude that the superintendent of the school district
is . . . absolutely immune from tort liability under Mich. Comp. Laws § 691.1407(5).”).
Indeed, in his response brief, McCarrick concedes as much. (Doc. 30 at 23, McCarrick
2. Governmental immunity shields Zeeman.
Michigan’s governmental immunity statute generally provides that employees of
governmental agencies are “immune from tort liability for an injury to a person or damage
to property caused by the . . . employee . . . while in the course of employment. . . .” Mich.
Comp. Laws § 691.1407(2). However, three elements must be met for immunity to apply:
(a) The . . . employee . . . is acting or reasonably believes he
or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or
discharge of a governmental function.
(c) The . . . employee’s . . . conduct does not amount to gross
negligence that is the proximate cause of the injury or damage.
Mich. Comp. Laws § 691.1407(2)(a)–(c).6
The first two elements are not in dispute. The parties dispute the third element,
particularly whether Zeeman was grossly negligent, and if so, whether he was the
proximate cause of McCarrick’s injuries.
It is not necessary to determine whether McCarrick proffered evidence establishing
that Zeeman was grossly negligent because Zeeman was not the proximate cause of
McCarrick’s injuries. Thus, assuming without deciding that Zeeman was grossly negligent,
he is still entitled to governmental immunity.
The Michigan Supreme Court in Robinson v. City of Detroit, 462 Mich. 439 (2000)
thoroughly addressed the meaning of proximate cause in the governmental immunity
statute. In Robinson, the Supreme Court considered two consolidated cases with similar
facts: police officers chased fleeing vehicles and the chase resulted in death to a person
other than the driver of the fleeing vehicle. Id. at 310–11. The question before the
Supreme Court was “whether the city of Detroit or individual police officers face civil liability
for injuries sustained by passengers in vehicles fleeing from the police when the fleeing car
Section 691.1407 does not create a cause of action; “a plaintiff must first establish that
the governmental employee defendant owed a common-law duty to the plaintiff.”
Rakowski v. Sarb, 269 Mich. App. 619, 628 (2006) (citing Beaudrie v. Henderson, 465
Mich. 124, 139 n.12 (2001)). Under Michigan law, principals have a duty to minimize
injury to students in their charge. Vargo v. Svitchan, 100 Mich. App. 809 (1980).
caused an accident.” Id. at 311. Finding that police officers owed a duty to innocent
passengers in a fleeing vehicle, the Supreme Court turned next to the issue of proximate
Robinson makes clear that there can only be one proximate cause for purposes of
the governmental immunity statute. The Supreme Court reasoned that “[t]he Legislature’s
use of the definite article ‘the’ clearly evinces an intent to focus on one cause.” Id. at
458–59.7 Thus, “the phrase ‘the proximate cause’ is best understood as meaning the one
most immediate, efficient, and direct cause preceding an injury.” Id. at 459. The Supreme
[R]ecognizing that “the” is a definite article, and “cause” is a
singular noun, it is clear that the phrase “the proximate cause”
contemplates one cause. Yet, meaning must also be given to
the adjective “proximate” when juxtaposed between “the” and
“cause” as it is here. We are helped by the fact that this Court
long ago defined “the proximate cause” as “the immediate
efficient, direct cause preceding the injury.”
Laubengayer, 174 Mich. 701, 706 (1913). The Legislature has
nowhere abrogated this, and thus we conclude that in Mich.
Comp. Laws. § 691.1407(2)(c) the Legislature provided tort
immunity for employees of governmental agencies unless the
employee’s conduct amounts to gross negligence that is the
one most immediate, efficient, and direct cause of the injury or
damage, i.e., the proximate cause.
Id. at 462 (emphasis in original).
Applying the definition of proximate cause to the facts of the consolidated cases, the
Supreme Court held that the officers were immune from suit in tort because “[t]he one most
The Supreme Court expressly overruled Dedes v. Asch, 446 Mich. 99 (1994), which
held that the phrase “the proximate cause” in the statute meant “a proximate cause.” Id.
at 445–46, 458.
immediate, efficient, and direct cause of the plaintiffs’ injuries was the reckless conduct of
the drivers of the fleeing vehicles.” Id. at 462.
Robinson is instructive on the issue of proximate cause. Here, like Robinson,
Zeeman was not the “one most immediate, efficient, and direct cause” of McCarrick’s
injuries; Raymond was.
Michigan courts have consistently applied Robinson to shield from tort liability
governmental employees who are not the proximate cause of a plaintiff’s injuries. See,
e.g., Jones v. Bitner, 300 Mich. App. 65, 78 (2013) (reasoning that police officer who failed
to report child abuse/neglect after witnessing undercover sale of morphine pills in a home
with a young child was not the proximate cause of the child’s death, where the child later
died from ingesting morphine); Rakowski v. Sarb, 269 Mich. App. 619, 636 (2006)
(reasoning that loose handrail was the proximate cause of plaintiff’s fall, not defendant’s
failure to correctly approve ramp during inspection six months prior); Cooper v. Washtenaw
Cnty., 270 Mich. App. 506, 508, 510–11 (2006) (reasoning that inmate’s suicide was the
proximate cause of his death, not actions or inactions of law enforcement while inmate was
in custody); Kruger v. White Lake Twp., 250 Mich. App. 622 (2002) (reasoning that police
officers were not proximate cause of woman’s death when she escaped from the police
station, ran into traffic, and was hit by a vehicle). This case is no different. To the extent
that Zeeman was grossly negligent in failing to prevent Raymond from assaulting
McCarrick, his gross negligence was not the proximate cause of McCarrick’s injuries.
McCarrick misplaces his reliance on Philpott v. City of Portage, No. 4:05-CV-70,
2006 WL 2385316 (W.D. Mich. Aug. 17, 2006). In Philpott, the court reasoned that the
defendant police officer’s failure to loosen plaintiff’s handcuffs despite hearing plaintiff’s
complaints, if true, was the proximate cause of plaintiff’s injuries. Id. at *7. This case is
distinguishable. When a person is handcuffed and in police custody, police officers are the
only ones who are able to loosen the handcuffs. In effect, the police officers have exclusive
control over the cause of the injuries–the handcuffs. Here, unlike the situation in Philpott,
Zeeman did not have exclusive control over Raymond, the person who caused McCarrick’s
Pardon v. Finkel, 213 Mich. App. 643 (1995) is also inapposite. In Pardon, the court
of appeals determined that sheriff’s deputies hired by a private agency for crowd control
services were not engaged in a governmental function and, therefore, not entitled to
governmental immunity. Id. at 649. Pardon’s holding has no bearing on the issues in this
In sum, Zeeman is immune from suit for gross negligence under Michigan’s
governmental immunity statute because Raymond, not Zeeman, was the proximate cause
of McCarrick’s injuries.
B. Count IV (Violation of Fourteenth Amendment)
Count IV of the complaint claims a violation of the Fourteenth Amendment’s
substantive Due Process Clause. As best as can be gleaned from McCarrick’s complaint
and papers, this count is premised on two arguments. First, McCarrick says that Lapeer’s
failure to have a written policy about the proper action to be taken by school officials after
a fight violated his due process rights to be free from bodily injury. This argument has no
merit. Second, McCarrick says his due process rights were violated because Zeeman
knew that Raymond was going to assault him but did nothing to prevent it. This argument
1. The Law
The Fourteenth Amendment to the United States Constitution provides that “[n]o
State shall . . . deprive any person of life, liberty, or property, without due process of law.
. . .” U.S. Const. amend. XIV. However, as the Supreme Court has explained, “nothing in
the language of the Due Process Clause itself requires the State to protect the life, liberty,
and property of its citizens against invasion by private actors.” DeShaney v. Winnebago
Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). Indeed, the Supreme Court went on
The Clause is phrased as a limitation on the State’s power to
act, not as a guarantee of certain minimal levels of safety and
security. It forbids the State itself to deprive individuals of life,
liberty, or property without “due process of law,” but its
language cannot fairly be extended to impose an affirmative
obligation on the State to ensure that those interests do not
come to harm through other means.
Id. Thus, the general rule is that “a State’s failure to protect an individual against private
violence simply does not constitute a violation of the Due Process Clause.” Id. at 197. In
other words, “[t]he purpose of the Due Process clause is ‘to protect people from the State,
not to ensure that the State protect[s] them from each other.’” Soper v. Hoben, 195 F.3d
845, 852 (6th Cir. 1999).
However, there are two exceptions to the general rule, “instances where the state
is obligated to aid or protect an individual from further danger: 1) the custody exception and
2) the state created danger exception.” Peete v. Metro. Gov’t of Nashville and Davidson
Cnty., 486 F.3d 217, 223 (6th Cir. 2007) (citing Jackson v. Schultz, 429 F.3d 586, 590–91
(6th Cir. 2005)). McCarrick invokes the state-created danger exception in this case.
As explained by the Sixth Circuit, “[t]he state-created danger exception applies
where the state causes or greatly increases the risk of harm to its citizens without due
process of law through its own affirmative acts.” Id. at 223 (citing Kallstrom v. City of
Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998)). To prove liability under the state-created
danger exception, a plaintiff must show the following:
(1) affirmative acts by the state that “create or increase the risk
that an individual will be exposed to private acts of violence;”
(2) that the state’s actions placed the victim “specifically at risk,
as distinguished from a risk that affects the public at large;” and
(3) that the state knew or “clearly should have known that its
actions specifically endangered an individual.”
2. The state-created danger is not applicable to this case
McCarrick’s Fourteenth Amendment claim based on the state-created danger
exception fails for a fundamental reason: none of the Defendants created or increased the
risk of harm to McCarrick. McCarrick is not claiming Zeeman told Raymond to assault him.
Nor is McCarrick claiming that Zeeman instigated the fight after Raymond told him that he
wanted to assault McCarrick. Rather, McCarrick says that Zeeman sat by idly knowing that
McCarrick might be at risk of harm. This is not enough to establish liability under the statecreated danger exception.
Courts considering analogous cases have determined that the state-created danger
exception does not apply to allow a plaintiff to assert a substantive due process claim under
the Fourteenth Amendment. In one such case, Vidovic v. Mentor City Sch. Dist., 921 F.
Supp. 2d 775 (N.D. Ohio 2013), a sixteen-year-old high school student committed suicide.
His parents brought suit against the school district and school employees alleging that their
failure to prevent students from bullying and harassing their son violated their constitutional
rights. The court observed that, “[w]hile it may seem that a school, of all places, should
provide a safe and supportive environment for the children in its care, it is well settled that
a school does not meet the requisite level of control over its students to give rise to a
constitutional duty to protect.” Id. The court recognized that “[b]oth the U.S. Supreme
Court and the Sixth Circuit have repeatedly held that a failure to act, even with knowledge
that a risk of harm may exist without state intervention, is not enough to confer liability
under the Fourteenth Amendment.” Id. (citing DeShaney, 489 U.S. at 197; Patterson v.
City of Detroit, No. 08-cv-10732, 2008 WL 4858440 (E.D. Mich. Nov. 10, 2008); Jones v.
Reynolds, 438 F.3d 685 (6th Cir. 2006); Schroder v. City of Fort Thomas, 412 F.3d 724,
728–29 (6th Cir. 2005); Weeks v. Portage Cnty. Exec. Offices, 235 F.3d 275 (6th Cir.
2000)). Thus, the court concluded that, “although parents should be able to expect that
their children will be kept reasonably safe when under the school’s supervision . . . , the
school has no constitutional duty to protect or rescue [students] from harm imposed by
other students.” Id. (emphasis in original).
In Soper v. Hoben, 195 F.3d 845, 848 (6th Cir. 1999), a special education student
was harassed, molested, and raped by three of her classmates at school and on the bus.
The student and her mother sued the school and school employees. The student’s mother
stated that she had previously told school employees to keep an extra eye on her daughter
and make sure that she was not left alone with boys. The Sixth Circuit rejected the notion
that the school or its employees were liable under the Due Process Clause:
It is clear that a constitutional violation arises if a school official
physically violates a student. See, e.g., Doe v. Claiborne
Cnty., 103 F.3d 495 (6th Cir. 1996) (holding schoolchild’s right
to personal security and bodily integrity manifestly embraces
right to be free from sexual abuse at the hands of a public
schoolteacher). However, the [plaintiffs] argue that Boys A, B,
and C violated [plaintiff’s] protected liberty interest in bodily
integrity and that because the students who harmed [plaintiff]
were under the control of the [school] and because [the school]
had a “special relationship” with [the plaintiff], [the school] may
be held liable for violating [her] Due Process rights. The district
court correctly found that this argument fails, as the facts at bar
do not give rise to a constitutional violation. First, the persons
who harmed [the plaintiff] were private actors, not
governmental or school officials acting under color of state law
or pursuant to governmental or school policies. Additionally,
there is no “special relationship” between the school and [the
Id. at 852–53 (internal citations omitted).
This case is no different than Vidovic and Soper. McCarrick cannot bring a due
process claim against Defendants based on injuries he suffered at the hands of a private
actor, Raymond. Neither the school nor the school employees had a constitutional duty to
protect McCarrick from being harmed by another student.
C. Count V (Supervisory Liability)
In count V, McCarrick says that Defendants are liable for his injuries for failing to
have appropriate policies in place to address school fights. McCarrick’s claim fails as a
matter of law. As explained above, Defendants do not have a constitutional duty to prevent
students from physically harming other students.
In addition, Defendants have provided evidence that student-on-student violence is
addressed in the Board of Education Policies, Student Code of Conduct, and Student
Handbook. Thus, even if McCarrick could establish an underlying constitutional violation,
he has not proffered evidence creating a genuine issue of material fact on the supervisory
For the reasons stated above, Defendants’ motion for summary judgment was
granted. Counts II (gross negligence), IV (violation of Fourteenth Amendment) and V
(supervisory liability) were dismissed. This case proceeds against Raymond, only, on
count I (assault and battery).8
Dated: August 27, 2013
UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, August 27, 2013, by electronic and/or ordinary mail.
Although the Clerk has entered a default against Raymond, McCarrick has not filed a
motion for default judgment.
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