Cummerlander et al v. Patriot Preparatory Academy et al

Filing 93

ORDER granting in part and denying in part re 83 Motion for Summary Judgment. DENYING as to Count I, Plaintiffs Fourth Amendment claim under 42 U.S.C § 1983, and Count VII, Punitive Damages as to Plaintiffs Fourth Amendment claim under 42 U.S.C. § 1983. Defendants Motion for Summary Judgment is GRANTED as to all other Counts in the Complaint. Signed by Judge Algenon L. Marbley on 2/9/2015. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PHYLLIS CUMMERLANDER, et al.,
Plaintiffs,
v.
PATRIOT PREPARATORY ACADEMY
INC., et al.,
Defendants.

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Case No. 2:13-CV-0329
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This matter comes before the Court on Motion of Defendants Patriot Preparatory
Academy (“Academy”), Sean Smith, Charles Kabealo, Pamela Gould, H. David McIIrath, and
C.P., a minor by and through his natural and custodial parent, Christian Penn, Sr. (collectively
“Plaintiffs”) for Summary Judgment on all counts in Plaintiffs’ complaint. Plaintiffs Phyllis
Cummerlander and J.T. Cummerlander (“JT”) (collectively “Plaintiffs”) bring this suit under 42
U.S.C. §1983, alleging the Academy, severally or jointly with Defendants, violated JT’s Fourth
Amendment right by subjecting him to a urinalysis drug screening under threat of expulsion on
April 20, 2012, and civil conspiracy related to the alleged violation of JT’s Fourth Amendment
right. Plaintiffs also allege the state law claims of interference with and/or destruction of
evidence, defamation, civil conspiracy brought under 42 U.S.C. §1983, loss of filial consortium,
and punitive damages. For the reasons set forth herein, Defendants’ motion is DENIED in part,
and GRANTED in part.
I.
A.

BACKGROUND
Factual Background

1

This civil rights and tort action arises from a urinalysis drug screening of an Academy
Student, JT, conducted under the discretion of Academy’s Principal, Sean Smith, on April 20,
2012. Academy is an Ohio Community School, otherwise known as a charter school, established
under R.C. Chapter 3314, which serves approximately 585 students in grades K-12. As a
community school, Academy operates independently of any school district and under contract
with an authorized sponsoring entity that is established by statute or approved by the State Board
of Education. Any student eligible to attend public school in the State of Ohio is eligible to
attend a community school.
Plaintiff JT enrolled in the eighth grade at Defendant Academy in 2012. JT’s school day
began in his homeroom, taught by Mr. Kabealo. At the Academy, the school day always began
with a 5-10 minute homeroom, in which students from the same grade gathered to receive
announcements and the homeroom teacher took attendance. Students were generally free to
interact with each other during homeroom.
The written policy concerning drug testing in the Academy’s student handbook, which
Cummerlander signed, states:
Expulsion: A student may be expelled because of excessive detention penalties or
for other serious problems. For example, a student may be expelled if involved in
the following, at or away from school, year round . . . Drug Testing: the school
has the right to demand a drug test (at the parent’s expense) if rumors are
circulating about a particular student. The refusal to submit to a drug test at the
request of the administration automatically results in the student’s removal from
the school.
1.

Kabealo’s Homeroom on April 20, 2012

On the morning of April 20, 2012, Defendant Kabealo allegedly heard students in his
homeroom discussing the fact that it was national marijuana day. Kabealo states that during this
discussion, Plaintiff JT entered the class, and Defendant Kabealo heard JT state that he had

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“smoked one this morning.” Kabealo further alleges that he heard another student, CP, respond,
“really?” Kabealo states that he then observed JT nod affirmatively and sit down. Kabealo attests
that nothing in the interchange caused him to conclude that the conversation was in jest.
Defendants allege that homeroom ended, and JT went to his first period class. Kabealo,
trained in the philosophy of “see something, say something,” reported to Smith what he allegedly
had heard JT say. Smith asked Kabealo whether he thought JT was joking, to which Kabealo
responded, “no.” Smith told Kabealo that he would look into the matter, and Defendants state
that Kabealo had no further involvement in the matter, nor did he ever discuss the matter again
with JT. Smith does not state that he asked Kabealo any other questions during that exchange.
After speaking with Kabealo concerning JT’s alleged statement, Smith then spoke to the
student, CP. Smith states CP confirmed Kabealo’s version of events. CP’s first set of
interrogatories, dated March 22, 2014, corroborate that CP told Smith that he had heard JT state
that JT had smoked marijuana that morning. (Doc. 84-5 at 2). Defendant Smith does not state
that he asked CP any questions except whether he had heard JT’s particular statement. Smith did
not speak to any other students who may have been sitting with or near JT concerning JT’s
alleged statement, nor did he perform any further investigation. Plaintiffs allege that CP told Mr.
Smith that he did not hear JT say “I smoked one this morning.”
JT has a different version of the events. JT states that on the morning of April 20, 2012,
he walked into Kabealo’s homeroom and everyone was seated already. (Doc. 84, Attachment 4
at 17). He sat down at his seat in the back of the classroom near a student named Tayvion. Id. JT
observed that the other part of the class was talking about “something like marijuana” near the
front of the class. Kabealo was sitting in front of the class. Id. at 17-18. JT states that he was not
discussing marijuana, but boxing, with Tayvion. While JT was discussing boxing with Tayvion,

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JT states that another student named Nicholas asked him if he knew that it was marijuana day. JT
responded, “I don’t know. Marijuana is not a part of my life so I don’t recall – I don’t care for
that.” Id. at 18. The other students around him proceeded to discuss marijuana day. Id.
Cummerlander states in an affidavit that she had a telephone conversation with CP on July 29,
2013, and that CP stated in that conversation that: (1) he did not hear JT state that he had smoked
marijuana on April 20, 2012; (2) Smith was present in the Kabealo homeroom on April 20, 2012;
and (3) when asked by Smith in his office on April 20, 2012 whether JT smoked and/or
possessed marijuana, he said no to each of these questions. (Doc. 89-2). In CP’s December 9,
2013 deposition, however, he stated that he did not remember anything concerning the April 20,
2012 incident. (Doc. 84-1).
JT states that Smith entered the homeroom while it was still in session, and that Smith
had a verbal exchange with Kabealo, and remained there when homeroom period ended and JT
went to his first period class. JT states that after being in his first period for 15 minutes,
Defendant Smith retrieved him from class.
2.

Smith’s Office

In his office, Smith shared with JT the information he had allegedly received from
Kabealo concerning JT’s statement that he had smoked marijuana that morning, as well as CP’s
alleged corroboration of Kabealo’s version of the events. Smith gave JT an opportunity to
respond, and JT denied making the statement that he had “smoked one this morning.” According
to JT, Smith then said “why don’t you prove it, then.” JT asked why he would have to prove it, to
which Smith stated that if he did not take the test, he would not be able to return to the Academy.
At that point, JT acquiesced to the test. Smith states that he made the decision to test JT pursuant
to the Academy drug testing policy. Smith states also that by his judgment, CP had no malice or

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reason to make something up about JT, and Kabealo is a staff member whom he trusts, so he
determined that he trusted JT’s denial less than the statements made by CP or JT. Smith states
that he did not consider JT’s demeanor when making the decision to test JT. He further states
that nothing in JT’s behavior or appearance was out of the ordinary; his decision to test JT for
marijuana rested entirely on the statements Kabealo and CP made to him. Neither Gould nor
Kabealo state they observed any signs that JT was under the influence of marijuana. Smith also
states that he did not think JT had any history of substance abuse.
After JT acquiesced to the test, Smith called Cummerlander and informed her that her son
had been accused of smoking marijuana, that he had acquiesced to a drug test, and requested her
permission to drug test him. According to Cummerlander’s deposition, she denied that JT
smoked marijuana, and provided her consent, but stated that she would have JT retested
regardless of any results.
Gould and Smith directed JT to a private bathroom to urinate in a cup. Gould prepared
the urinalysis drug test, and it sat for some time on a shelf until it was ready. Gould and Smith
reviewed the directions included in the drug test kit, and told JT that two bars would mean the
test was clean, and one bar would mean he tested positive for marijuana. When the test was
ready, Gould and Smith read the results and determined that two bars had shown up, but that one
of them was more distinct than the other. They determined, therefore, that the test “appeared”
positive for marijuana. Gould recorded her observations in a memorandum, and did not take any
other actions regarding the matter.
In light of what Smith and Gould determined was a positive screen, Smith called
Cummerlander to retrieve JT from the Academy. Smith communicated in a letter that JT could
not return to school unless Academy received a “clean” drug screening for JT, and gave this

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letter to Cummerlander when she arrived. Cummerlander looked at the test results and states that
she saw two lines. JT saw two lines as well. Cummerlander attempted to take the test with her,
but Smith took it back from her. On Monday April 23, 2013, JT received a drug test that showed
he tested negative for marijuana, and Plaintiffs advised Smith of the test results. JT returned to
the Academy on Tuesday April 24, 2012.
3.

Return to School on April 24, 2012

JT states that when he returned to school, CP, in the presence of three or four other
Academy students, said to JT that Smith had told him that JT was expelled for smoking
marijuana. In Cummerlander’s affidavit she states that she spoke to CP on the phone on July 29,
2013, and CP stated that on April 24, 2012, Defendant Smith told CP that JT was suspended
from the Academy because JT smoked marijuana.
In his interrogatory responses, CP states that he heard JT had been suspended for
smoking marijuana from a friend whom JT had texted and told he had been suspended for
smoking marijuana. Defendants Kabealo and Smith, as well as one of JT’s other teachers,
Briggs, state that JT appeared unfazed by the incident upon his return, and acted normally with
Kabealo.
4.

Injury

Plaintiffs state that the false accusation, two drug tests, the false reading of the initial
drug test, the disruption of JT’s educational experience, the publication of the expulsion of JT for
smoking marijuana and the Academy’s refusal to delete the accusation from JT’s record for some
time caused Cummerlander and JT distress and anxiety. They also state that they received and
continue to receive professional assistance in dealing with this anxiety and distress.

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B.

Procedural Background

Plaintiffs filed this action on April 8, 2013. (Doc. 1). On November 15, 2013, Plaintiffs
amended the complaint to assert the following claims against Defendants: (I) a 42 U.S.C. 1983
claim for a Fourth Amendment Violation; (II) Interference with and/or Destruction of Evidence;
(III) Defamation; (IV) 42 U.S.C. 1983 claim for Civil Conspiracy; (V) Negligent
Misidentification; (VI) Filial Consortium; (VII) Punitive Damages. (Doc. 30).
Defendants filed their Motion for Summary Judgment on all of Plaintiffs’ claims on
September 8, 2014. (Doc. 83). This matter has been fully briefed and is therefore ripe for review.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it
“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United
States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The necessary inquiry for this Court 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.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the
light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs.,
Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court reviewing a summary judgment motion need
not search the record in an effort to establish the lack of genuinely disputed material facts,

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however. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404 (6th Cir.1992). Rather,
the burden is on the nonmoving party to present affirmative evidence to defeat a properly
supported motion, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989), and to
designate specific facts that are in dispute. Anderson, 477 U.S. at 250; Guarino, 980 F.2d at
404–05.
To survive the motion the nonmoving party must present “significant probative evidence”
to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). The mere existence of a scintilla of
evidence in support of the opposing party's position will be insufficient to survive the motion;
there must be evidence on which the jury could reasonably find for the opposing party. See
Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also
Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (finding that the suggestion of a
mere possibility of a factual dispute is insufficient to defeat a motion for summary judgment)
(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).
III.
A.

ANALYSIS

42 U.S.C § 1983, Fourth Amendment Claims

Defendants argue that they are entitled to summary judgment on Plaintiffs’ claim that the
April 20, 2012 search of JT was a violation of JT’s Fourth Amendment rights. First, Defendants
argue that JT and his mother provided their verbal consent for the urinalysis, which is an
exception to the reasonable suspicion requirement. Second, Defendants argue that, even if the
Court does not conclude that JT and Cummerlander consented to the urinalysis, Defendants sued
in both their individual and official capacities are entitled to qualified immunity for any potential
violation of JT’s Fourth Amendment rights.

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Plaintiffs retort that the verbal consent to JT’s drug test is better characterized as
acquiescence, as it was forced under the threat of JT’s expulsion. Further, they argue that
Defendants are not entitled to qualified immunity because the search of JT was not based on
reasonable suspicion, and was made pursuant to an unconstitutional school policy that calls for
mandatory drug testing under risk of expulsion if there is a rumor that a student has used drugs.
The Court will address the question of consent as a threshold issue before reaching the
question of qualified immunity.
1.

Whether Plaintiffs Consented to a Urinalysis

Plaintiffs do not contend that they did not provide verbal permission to Defendant Smith
to drug test JT. Instead, they argue that their verbal acquiescence to the urinalysis was not
voluntary, but coerced, because it was demanded under threat of JT’s expulsion. There is no
dispute that Defendant Academy has a school policy that provides that if rumors are circulating
about a particular student regarding drug use, he or she will be drug tested, and the refusal to
submit to a drug test at the request of the administration automatically results in expulsion. Nor
is there a dispute that Cummerlander signed the student handbook containing the drug testing
policy. Smith’s deposition confirms that he made the decision to drug test JT pursuant to this
policy.
The Fourth Amendment of the United States Constitution provides, in part, “[t]he right
of people to be secure in their persons ... against unreasonable searches and seizures, shall not be
violated....” U.S. Const. amend. IV. When a search is “conducted pursuant to consent,” however,
the court need not reach the question of whether the search was reasonable, as long as consent
was given both freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct.
2041, 36 L.Ed.2d 854 (1973). Consent must be proved by clear and positive testimony and must

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be unequivocal, specific, and intelligently given, uncontaminated by any duress and coercion.
United States v. Williams, 754 F.2d 672, 674–75 (6th Cir.1985). Consent must not be coerced, by
explicit or implicit means, by implied threat, or covert force. Schneckloth, 412 U.S. at 228, 93
S.Ct. 2041. When conducting this analysis, account must also be taken for the potentially
vulnerable subjective state of the searched person. Id. at 229.
In Tarter v. Raybuck, 742 F.2d 977 (6th Cir. 1984), the Court considered whether a
student voluntarily consented to a Fourth Amendment search by school officials, where school
officials searched the student after he had been observed smoking and exchanging money and
plastic bags believed to be marijuana. Id. at 979. First, the school officials asked him to remove
his jacket and searched his outer clothing. Id. Then, they requested the student remove his pants,
but the student refused. Id. at 980. The district court concluded that the student consented to the
search, but the appellate court was not “convinced” that the student “knowingly and intelligently
waived his constitutional rights when he ‘consented’ to be searched,” and chose to resolve the
case on other grounds. Id. at 980. The Tartar Court held that
[t]he burden would be upon defendants to demonstrate such a voluntary
relinquishment of constitutional rights by plaintiff. There is a presumption against
the waiver of constitutional rights. That he may have acquiesced in the initial
search does not necessarily demonstrate the relinquishment of his rights to
challenge his initial search. In fact, David Tarter's testimony indicates he only
submitted to the search because he was afraid. Furthermore, there is no indication
he even was aware that he might have had a constitutional right to object to a
search. His eventual refusal to be strip-searched fully is not necessarily an
indication of a waiver of his rights, rather it is equally likely that personal
modesty or embarrassment resulted in his ultimate refusal to permit the search to
continue.
Id. at 980-81.
In the case sub judice, there is a similar presumption against the waiver of JT’s
constitutional rights. Like the student in Tarter, JT and his mother clearly were fearful that JT

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would be expelled if he did not acquiesce to the search. Smith directly threatened JT with
expulsion, though it does not appear Smith directly brought up the school expulsion policy
during his phone conversation with Cummerlander. She had, however, signed the student
handbook containing the policy, and by her signature was presumed to be aware of the
repercussions should she have refused. Although JT and his mother gave clearer verbal consent
in the case sub judice than the student in Tarter, the clarity of their consent is irrelevant because
it was coerced, nonetheless, under the threat of JT’s expulsion and the fear surrounding the
accusation. Further, the burden is on the Defendants to show that JT and his mother voluntarily
relinquished JT’s Fourth Amendment rights; Defendants present no evidence that either JT or his
mother was aware that JT had a constitutional right to object to an unreasonable search.
Thus, this Court holds that Defendant Smith secured the verbal consent from JT and his
mother by coercive means, because they were faced with the choice between waiving JT’s
constitutional right against unreasonable search and seizure and expulsion. Further, the facts do
not show that JT was aware of his right to refuse an unreasonable, unconstitutional search.
The Supreme Court, the Sixth Circuit, and other Circuits have consistently held that
individuals do not voluntarily waive their constitutional rights when they are presented with the
stark choice by an authority figure between waiving a constitutional right and maintaining their
livelihood. This line of cases supports this Court’s determination that JT and his mother did not
consent freely to the search. First, in the context of waiver of a constitutional right under threat
of losing one’s livelihood, the Supreme Court and the Sixth Circuit have held that public
employees cannot be given a stark choice between asserting a constitutional right and losing their
jobs. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (“If a search is unreasonable, a
government employer cannot require that its employees consent to that search as a condition of

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employment.”); Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation of City of New York,
392 U.S. 280, 284-85 (1968); see also Gardner v. Broderick, 392 U.S. 273, 279 (“the mandate of
the great privilege against self-incrimination does not tolerate the attempt, regardless of its
ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of
employment”); Clemente v. Vaslo, 679 F.3d 482, 492 (6th Cir. 2012) (finding that the Sixth
Circuit cases on the issue of waiving one’s constitutional right under threat of employment
termination falls well within clearly established law of upholding employer actions where the
employees were not required to give up constitutional protections in order to keep their
employment).
Similarly, the Eleventh Circuit has held that an employees’ submission to mandatory,
suspicionless drug testing, on pain of termination, does not constitute consent under Schneckloth.
Am. Fed'n of State, Cnty. & Mun. Employees Council 79 v. Scott, 717 F.3d 851, 873-76 (11th
Cir. 2013) cert. denied, 134 S. Ct. 1877, 188 L. Ed. 2d 912 (2014). The Scott Court called it a
Hobson Choice to tell employees “either they relinquish their Fourth Amendment rights and
produce a urine sample which carries the potential for termination, or they accept termination
immediately.” Id. In Lebron v. Sec'y, Fla. Dep't of Children & Families, the Eleventh Circuit
similarly held that a welfare recipient’s “mandatory ‘consent’ ” to suspicionless drug testing in
order to receive benefits was of no “constitutional significance” because it was a “‘submission to
authority rather than ... an understanding and intentional waiver of a constitutional right.’” 710
F.3d 1202, 1214-15 (11th Cir.2013) (quoting Johnson, 333 U.S. at 13, 68 S.Ct. 367).
The comparison is obvious between threatening employees or welfare recipients with loss
of their livelihood unless they relinquish their constitutional rights, and threatening students with
expulsion unless they relinquish their constitutional rights. Further, as stated in Lebron,

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providing consent to a drug test due to submission to authority is of no constitutional
significance. Every American youth depends on access to public school and a positive school
record in order to attain future economic success. Just like government employees and welfare
recipients do not voluntarily waive their constitutional rights under threat of losing their
livelihood, neither did JT and his mother voluntarily consent to relinquish JT’s Fourth
Amendment right under threat of his expulsion.
2. Qualified Immunity
Now that the Court has determined it will not resolve Plaintiffs’ Fourth Amendment
claim on summary judgment on the grounds that they gave their consent to the search, the Court
will consider next Defendants’ argument that Defendants are entitled to qualified immunity.
Section 1983 of 42 U.S.C. “permits an injured person to recover in federal court against
defendants who violate a plaintiff’s federal statutory or constitutional rights while acting under
color of state law.” Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 493 (6th Cir. 2008) (citing
Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir.2002)). There is no dispute in this case
that Academy or school officials were acting under state law at all times relevant. Defendants
contend, however, that the doctrine of qualified immunity shields those Defendants sued in their
individual capacities, and also those sued in their official capacities and municipal entities from
liability for the alleged deprivation of JT’s Fourth Amendment right.
As it pertains to individual public officials, the doctrine of qualified immunity shields
government officials performing discretionary functions from civil liability insofar they can
show “that they did not violate any of the plaintiff’s federal statutory or constitutional rights that
were ‘clearly established’ at the time of the alleged misconduct and of which the defendants

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could reasonably be expected to have been aware.” Brannum v. Overton Cnty. Sch. Bd., 516 F.3d
489, 493-94 (6th Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 202 (2001).
Thus, when determining whether to grant qualified immunity to an individual
government official, this Court employs a three-part test:
First, we determine whether, based upon the applicable law, the facts viewed in the light
most favorable to the plaintiffs show that a constitutional violation has occurred. Second,
we consider whether the violation involved a clearly established constitutional right of
which a reasonable person would have known. Third, we determine whether the plaintiff
has offered sufficient evidence to indicate that what the official allegedly did was
objectively unreasonable in light of the clearly established constitutional rights. If the
answer to all three questions is yes, then qualified immunity is not proper.
Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 602-03 (6th Cir. 2005)(citations omitted).
As the doctrine of qualified immunity pertains to officials sued in their official capacities
and municipal entities, such defendants are liable for a violation of § 1983 if the Plaintiffs show:
(1) A deprivation of a constitutional right; and
(2) The municipal entity is responsible for that deprivation.
Doe v. Claiborne Cnty., Tenn. By & Through Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 50506 (6th Cir. 1996) (citing Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061,
1065–66, 117 L.Ed.2d 261 (1992)). To prove that the Academy is responsible for the violation,
the Plaintiffs cannot rely on a theory of respondeat superior, since liability under § 1983 may not
be imposed on a governmental entity for the acts of its employees. Id.; see also Monell v.
Department of Soc. Servs., 436 U.S. 658, 692 (1978). Instead, Plaintiffs must show that the
School itself is the wrongdoer. Id. The Academy cannot be found liable unless the Plaintiffs “can
establish that an officially executed policy, or the toleration of a custom within the [school] leads
to, causes, or results in the deprivation of a constitutionally protected right. Id. at 507 (citing
Monell, 436 U.S. at 690–91). In other words, the Plaintiffs must show a “direct causal link

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between the custom and the constitutional deprivation; that is, ‘show that the particular injury
was incurred because of the execution of that policy.’” Doe v. Claiborne County, 103 F.3d 495
(6th Cir.1996) (citation omitted). As stated in Doe, it is necessary to show this “direct causal
link” to “avoid de facto respondeat superior liability explicitly prohibited by Monell.” Id. at 508.
As the first step in the qualified immunity analysis, this Court will address whether the
drug testing of JT was an unconstitutional deprivation of his Fourth Amendment right.
a. Constitutional Violation of Fourth Amendment
The constitutional jurisprudence is well-established that the Fourth Amendment applies
in the public school context to protect students from unconstitutional searches conducted by
school officials. Brannum, 516 at 494 (citing Vernonia Sch. Dist 47J v. Acton, 515 U.S. 646, 656
(1995); New Jersey v. T.L.O., 469 U.S. 325, 333-34 (1985)). Specifically, “[s]earches by public
school officials, such as the collection of urine samples, implicate Fourth Amendment interests.”
Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002).
Thus, even on school property, students have legitimate expectations of privacy. New Jersey 469
at 339. While school officials are subject to the mandates of the Fourth Amendment, however,
“the accommodation of the privacy interests of schoolchildren with the substantial need of
teachers and administrators for freedom to maintain order in the schools does not require strict
adherence to the requirement that searches be based on probable cause to believe that the subject
of the search has violated or is violating the law.” Id. at 341. In lieu of a probable cause standard,
the Supreme Court has applied the standard of reasonable suspicion under all the circumstances
to determine the legality of a school administrator’s search of a student. Safford Unified School
Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (citing T.L.O. at 354). The Supreme Court set
forth a two-part test to determine the reasonableness of a school’s search of a student: first, the

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search must be justified at its inception; if it is, then the second prong requires that the search, as
actually conducted, be reasonably related in scope to the circumstances justifying the search in
the first place. Id.
Plaintiffs do not argue that the search in question was unreasonable in scope, but only in
its inception. A school’s search of a student is justified at its inception “when there are
reasonable grounds for suspecting that the search will turn up evidence that the student has
violated or is violating either the law or the rules of the school.” T.L.O., 469 U.S. at 342. The
Supreme Court has held that when analyzing whether reasonable suspicion exits in the context of
school searches, the standard can be described as “a moderate chance of finding evidence of
wrongdoing.” Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371. When analyzing
the required knowledge element of a reasonable search, we look to the “specificity of the
information received,” and the “reliability of its source,” but at the end of the day “these factors
cannot rigidly control, as the standard takes their substantive content from the particular contexts
in which they are being assessed.” Id.
The Sixth Circuit has stated, “it is the affirmative obligation of the school authorities to
investigate any charge that a student is using or possessing narcotics and to take appropriate
steps if the charge is substantiated.” Tarter, 742 F.2d at 982. Even when viewing the facts in the
light most favorable to the Defendant, this Court does not find that Defendant Smith’s
investigation of the charges against JT substantiated those charges under the circumstances, and
thus did not meet the reasonable suspicion standard. In other words, this Court finds that
Kabealo’s statement that he overheard JT say he had smoked marijuana, and CP’s corroboration
of JT’s statement, without any further investigation of the circumstances, was not sufficient
evidence for Smith to search JT.

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This Court finds it particularly relevant that no other school official made any other
finding or observation regarding whether JT had smoked marijuana that day or any day prior.
Smith’s rapid resort to coercing JT into a drug test to resolve the charge against him, under the
pretense that JT should simply prove he had not smoked if he in fact had not, undermines the
protections provided to JT and other students under the Fourth Amendment. Cases from the
Supreme Court as well as the Sixth Circuit show that a search of a student for alleged drug use or
possession should be based on a reasonable investigation, that includes a consideration of indicia
of the student’s present or past drug use, and an assessment of the reliability of the informant’s
statements and the student’s history.
It is important to note that while the Supreme Court has upheld suspicionless drug testing
for students involved in both athletic and non-athletic extracurricular activities, neither the
Supreme Court nor this Circuit has never upheld suspicionless drug testing for the entire student
population. See Vernonia school Dist. 47J v. Acton, 515 U.S. 646 (1995); Bd. of Education of
Independent School Dist. Of Pottawatomie Cnty v. Earls, 536 U.S. 822 (2002). In Vernonia and
Earl, the Court considered that students electing to participate in after-school programs were
subject to a separate set of rules that do not apply to the student body as a whole, had a lower
expectation of privacy due to situations of communal undress and medical examinations, and that
the only consequence was to limit students’ privilege to participate in the elective activity. In
contrast, students in the general population are required by law to go to school and have not
made voluntary tradeoffs of some of their privacy interests in exchange for a benefit or privilege.
See Doe ex rel. Doe v. Little Rock Sch. Dist., 380 F.3d 349, 353-54 (8th Cir. 2004) (holding
unconstitutional an official school policy that stated all students’ personal belongings were
subject to random and periodic search at all times because school could not “deprive its students

17

of privacy expectations protected by the fourth amendment simply by announcing that the
expectations will no longer be honored.”). Thus, the constitutional standard of reasonable
suspicion applies to the drug test in the case sub judice.
In T.L.O. and Safford, the Supreme Court found reasonable suspicion for the respective
schools to search the students for drug use or possession based on investigations and indicia for
drug use or distribution much more complete than are present in the case sub judice. First, in
T.L.O. the Supreme Court found sufficient indicia to search a student’s purse only after a teacher
personally discovered the plaintiff and her companion smoking cigarettes in a school lavatory.
T.L.O. 469 at 325. When the principal searched the student’s purse for cigarettes, she found
rolling papers that are commonly associated with marijuana use, and proceeded to search other
compartments and found some marijuana. Id.
In Safford, the Supreme Court found reasonable suspicion to search a student’s backpack
and outer clothing for prescription drugs only after direct evidence showed a high likelihood that
the student was in possession of contraband and prescription medication on campus, and the
school corroborated, from various sources, that the student allegedly had been involved in illegal
drug and alcohol related activity on campus and at home. Safford Unified Sch. Dist. No. 1 557
U.S. at 365. In Safford, a week before the search at issue, student J told the principal and
assistant principal that students were bringing drugs and weapons to school and that he had
gotten sick from the pills. Id at 371-372. On the day of the search, student J returned to the
assistant principle with a similar pill he said came from student M, and that students were
planning to take the pills at lunch. Id. at 372. When the administrators questioned student M, she
was in possession of a day planner that contained various contraband items, which student M
said belonged to student S. Id. The assistant principle searched students M’s pockets and wallet,

18

and found a blue pill, several white ones, and a razor blade. Id. Student M stated that the blue pill
came from Student S. Id. Student S was called into the office and she revealed she was friends
with student M, and that the day planner was hers. Id. at 373. The assistant principle also had a
report confirming student S and student M’s were friends, and were part of an “unusually rowdy
crowd” associated with alcohol use. Id. The Supreme Court concluded that student M’s
statement that the pills came from student S was “sufficiently plausible to warrant suspicion that
[student S] was involved in pill distribution.” Id. Further, the Supreme Court found that the
assistant principal’s suspicion was enough to justify a search of the backpack and outer clothing.
Id.
Similarly, Sixth Circuit cases show that a reasonable level of investigation, observation,
and assessment of the reliability of informants must take place before officials can search a
student based on reasonable suspicion for drug use, and that the investigation in the case at hand
fell short of the standard. In Williams v. Ellington, 936 F.2d 881 (6th Cir.1991), the plaintiff, a
teenage girl, claimed that her high school violated her Fourth Amendment rights by strip
searching her without reasonable suspicion as part of an investigation into allegations that she
had been consuming drugs at the school. Id. at 882. A fellow student’s parent first alerted the
principal to the plaintiff’s alleged drug use by claiming that she had witnessed the plaintiff and a
friend smelling a white powder in class, and that the plaintiff had offered her some. Id. The
principal verified that the accusing student had no animosity towards the plaintiff, ruling out any
ulterior motives of the accuser, and then launched a multi-day investigation of the plaintiff. Id.
He approached several of the plaintiff's teachers, who corroborated her strange behavior and
reported a note that the plaintiff wrote in which she referred to drug use. Id. The principal also
collected information from the school’s guidance counselor, the plaintiff's aunt, and the friend’s

19

father, all of whom expressed concern that both students may have been taking drugs. Id. The
principal acted only when the student who first made the allegation again approached him and
complained for the second time that the plaintiff and her friend were once again ingesting drugs
in class. Id. at 883. Upon confrontation in the principal’s office, the friend produced a vial of
“rush.” Id. Only then did the principal search the plaintiff. Id. The Sixth Circuit held that the
search was justified at its inception. Id. at 886.
In Fewless ex rel. Fewless v. Bd. of Educ. of Wayland Union Sch., 208 F. Supp. 2d 806
(W.D. Mich. 2002), the Court relied upon Williams v. Ellington to hold that the Assistant
principal of a high school and the high school security officer did not have the requisite
reasonable suspicion to search for marijuana on the student’s person because the school had not
pursued a reasonable investigation under the circumstances. In that case, the only basis for the
search was statements by two fellow students that the student kept marijuana in his “butt crack.”
Id. at 810. The school did not pursue any further investigation of the circumstances, thus failing
to uncover evidence, for instance, that the students who had accused plaintiff of possession were
hostile toward the plaintiff. Id. at 819-820. The Fewless Court noted that it was significant that
the William’s Court “examined to what extent an informant's tip could be used to create
reasonable suspicion. In analyzing the tip of an informant, a court is to use a ‘totality-of-thecircumstances’ inquiry and take into account the quantity and quality of the information
comprising a tip.” Id. at 818.
When this Circuit and others have found reasonable suspicion justifying a search of a
student suspected of marijuana use, they relied on the observation of multiple, common indicia
of marijuana smoking, none of which were present in this case. In Widener v. Frye, 809 F.Supp.
35, 38 (S.D.Ohio 1992), the Court found reasonable suspicion to search a student for marijuana

20

use when school officials personally observed multiple indicia of marijuana use in the student.
The student smelled of marijuana, appeared “lethargic” and “sluggish,” had dilated pupils in a
manner consistent with marijuana use, and gave an unsatisfactory explanation for those factors.
Notably, three separate school officials detected the odor of marijuana on the student, one of
whom was a former detective for the local police department police. Id.; See also Hedges v.
Musco, 204 F.3d 109 (3d. Cir. 2000) (finding reasonable suspicion to test for marijuana use
when student behaved in “uncharacteristically gregarious manner;” her face was flushed; her
eyes were glassy and red; her pupils were dilated; and she asked to get a drink of water, but
proceeded in a direction away from the fountain and did not return for ten minutes. The school
did not suggest a urinalysis, however, until the student was examined by the school nurse to
check her vital signs); Bridgeman v. New Trier High School Dist. No. 203, 128 F.3d 1146 (7th
Cir. 1997) (finding reasonable suspicion to test for marijuana use when student behaved in an
unruly and inappropriate manner; had bloodshot eyes and dilated pupils; and school nurse
confirmed higher than normal blood pressure and pulse).
In the case sub judice, Smith did not have sufficient information under the circumstances
to justify a search as reasonable. First, Smith did not conduct a sufficient investigation to assess
the reliability of Kabealo’s and CP’s account of JT’s statement, nor did Smith collect any other
information to support their accusation. For example, Smith did not consider the location in the
classroom of CP and Kabealo in relation to JT at the time of the alleged statement, or how such a
location could have affected the reliability of the statement. Smith did not speak to any other
students besides CP who had been sitting with JT that morning to confirm the statement. By his
own admission, Smith did not believe JT had any reputation for drug use, and he did not
investigate JT’s reputation for drug use with any other teachers or administrators. Unlike the

21

investigation that the school administrators pursued in Safford and Williams, in which they
verified the reliability of the tip, and underwent an investigation, in which they spent
considerable time, even days, connecting accused students to potential drug use or possession,
Smith tested JT within minutes of first hearing the accusation against him. Further, this case does
not present a situation like in T.L.O., where school officials directly observed a student engaging
in drug use or elicit activity, and which warranted less investigation.
Second, contrary to the other cases which found reasonable suspicion to drug test a
student based on observation of multiple indicia of marijuana use, in this case Smith did not
observe or consider any indicia of marijuana use in JT. Smith states that he did not consider JT’s
appearance or behavior to assess whether he appeared under the influence of marijuana, and
nowhere in his testimony does he note that JT appeared to be under the influence or presented
any other signs of having smoked marijuana, even though it is undisputed that JT was accused of
smoking that morning and it was less than an hour into the school day. Neither did Kabealo nor
any other school authority with whom JT came into contact note any evidence of marijuana
smoking. As opposed to Musco and Bridgman, Nurse Gould did not, nor was she asked to
perform any medical examination to identify internal symptoms of drug use. While all indicia
need not be present, it was unreasonable not to consider that JT did not in any way appear to be
under the influence when Smith made the decision not to investigate the matter further, and
instead moved rapidly to a Fourth Amendment search.
Based on Smith’s deposition testimony, when making the decision to drug test JT under
threat of expulsion, he relied fully on Kabealo’s statement and the corroboration of that
statement by only one of many students present in the classroom at the time of JT’s alleged
statement. Smith does state that he trusted Kabealo and that he did not have any knowledge of

22

CP having any malice toward JT, though he does not state that he asked CP any question but
whether JT made the statement of which he was accused. Further, no investigation was done into
whether Kabealo’s observations were reliable under the circumstances of an allegedly rowdy
classroom and a distance of at least 15-20 feet from JT. Considering the incident took place on
national marijuana day, when JT states many other students in the classroom were casually
discussing national marijuana day, a reasonable administrator under the circumstances could
have considered that some misunderstanding could have occurred, which called for pause and a
further investigation.
Thus, under qualified the immunity analysis, taking the facts in light most favorable to
Plaintiffs, Smith did not have reasonable suspicion to drug test JT, and thus there was a violation
of his constitutional right against unreasonable search and seizure. Consequently, the first prong
of the qualified immunity analysis has been satisfied.
b. Steps 2 and 3 of the Qualified Immunity Analysis for Individuals: Whether the right
was clearly established such that a reasonable official would have known about it
The Court has already determined that a constitutional violation occurred. The next step,
then, in the qualified immunity analysis for individual school officials sued in their personal
capacity is whether the right was clearly established such that a reasonable official would have
known about it. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523
(1987).
In the context of school search and seizure, the Supreme Court in Safford set forth the
standard for a clearly established law:
A school official searching a student is entitled to qualified immunity where
clearly established law does not show that the search violated the Fourth
Amendment. To be established clearly, however, there is no need that the very
action in question [have] previously been held unlawful. The unconstitutionality
of outrageous conduct obviously will be unconstitutional, this being the reason, as
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Judge Posner has said, that the easiest cases don’t even arise. But even as to
action less than an outrage, officials can still be on notice that their conduct
violates established law ... in novel factual circumstances.
Safford Unified Sch. Dist. No. 1, 557 U.S. at 377-78 (internal citations and quotations omitted).
At the time of the search at issue, the prior law of the Supreme Court and this Circuit
involving searches of students for suspected drug use and possession all clearly establish that
Smith’s determination that JT should be subjected to a drug test was unconstitutional. A
reasonable principal should have known that students have a Fourth Amendment right against
unreasonable searches and seizures, and that the standard for a reasonable search of students is
reasonable suspicion. T.L.O. 469 U.S. at 336–37; Tarter, 742 F.2d at 981(“[i]t is beyond
peradventure that school children do not shed their constitutional rights at the school house gate.
. . . School officials . . . are agents of the government and are constrained by the Fourth
Amendment.”)
The Supreme Court standard for free and voluntary consent to a search under the Fourth
Amendment is also well-established. Further, the Supreme Court cases T.L.O. and Safford, as
well as the Sixth Circuit case Williams, and the District Court case Fewless, puts Smith on notice
as to the indicia of drug use and possession that should be considered in an investigation for and
determination of reasonable suspicion of drug use. While it is unfortunate that Smith may have
acted in conformity with a school policy to which he was bound, as will be discussed in the
following section, such a school policy is unconstitutional and provides no protection to Smith in
the individualized qualified immunity analysis. Thus, this Court concludes that it was objectively
legally unreasonable for Smith to believe that JT and his mother gave voluntary and free consent
to a urinalysis, and unreasonable for him to believe that his investigation into JT’s alleged drug
use met the well-established standard of reasonable suspicion under the circumstances.

24

As the Sixth Circuit has explained, “[l]ike police officers, school officials need
discretionary authority to function with great efficiency and speed in certain situations, so long
as these decisions are consistent with certain constitutional safeguards.” Williams by Williams,
936 F.2d at 886. While questioning “an official's every decision with the benefit of hindsight
would undermine the authority necessary to ensure the safety and order of our schools,” coercing
a student under threat of expulsion to take a drug test without establishing reasonable suspicion
under the circumstances is akin to a student shedding his or her constitutional rights at the school
gate. Id.
Accordingly, the Court does not find that qualified immunity precludes personal liability
for Smith. The other school official Defendants sued in their individual capacities who played
some role in the April 20, 2012 events at issue in this case, including Gould and Kabealo, were
not sufficiently involved in the decision to test JT to be considered liable for a deprivation of
JT’s Fourth Amendment right.
c. Municipal Liability: Custom or Policy Caused the Deprivation
Now that the Court has conducted the qualified immunity analysis for officials sued in
their personal capacities, the Court will look to those sued in their official capacities, and, more
specifically, to the municipal entity, the Academy. The Court looks primarily to the Academy
because official capacity suits generally represent another way of pleading an action against an
entity of which an officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). As long
as the government entity receives notice and an opportunity to respond, an official-capacity suit
is, in all respects other than name, to be treated as a suit against the entity. Id. at 166. Since
Smith was the only school official responsible for the decision to test JT, he is the only school
official that the Court will consider in this analysis. Further, the superintendent H. David

25

McIIrath, who supervised Smith, and Patriot Preparatory Academy, the municipal entity itself,
are also subject to this analysis.
This Court will now address the second prong of the qualified immunity analysis for
officials sued in their official capacity and municipal entities: whether JT’s constitutional injury
was incurred because of the execution of an official policy or custom. See Doe v. Claiborne
County, 103 F.3d 495 (6th Cir.1996) (citation omitted). “Policy” has been defined as “formal
rules of understanding—often but not always committed to writing—that are intended to, and do,
establish fixed plans of action to be followed under similar circumstances consistently and over
time.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986).
In Fewless, the Court considered whether defendants sued in their official capacities
should be held liable for an unconstitutional search of a student. Fewless, 208 F.Supp.2d at 82022. The Fewless Court determined that although the school officials who searched the student
plaintiff were liable in their individual capacities for an unconstitutional search and seizure, the
school board’s policy concerning search and seizure was in no way unconstitutional, and there
was no other evidence of official custom or policy concerning the violation. Id. at 822. In
Fewless the official school policy concerning search and seizure “direct[ed] that no student be
searched without reasonable suspicion or in an unreasonable manner. The extent of the search
will be governed by the seriousness of the alleged infraction, the student's age, and the student's
disciplinary history.” Id. As the school policy met the constitutional “reasonable suspicion”
standard, the Fewless Court held that the Plaintiff was not entitled to summary judgment as to
any of the Defendants sued only in their official capacities.

26

In contrast to the school’s policy in Fewless, the Academy policy concerning search and
seizure is patently unconstitutional. The written expulsion policy in the student handbook
concerning drug testing of students states:
Expulsion: A student may be expelled because of excessive detention penalties or
for other serious problems. For example, a student may be expelled if involved in
the following, at or away from school, year round . . . Drug Testing: the school
has the right to demand a drug test (at the parent’s expense) if rumors are
circulating about a particular student. The refusal to submit to a drug test at the
request of the administration automatically results in the student’s removal from
the school.
The standard for a constitutional search of a student is reasonable suspicion under
the circumstances. A school policy that allows for drug testing under threat of expulsion
based on rumors alone, regardless of any other circumstances, and without any other
considerations or investigations, falls far short of the constitutional standard. Smith cited
to this school policy in an email to Plaintiff’s counsel as a justification for demanding
JT’s drug test. Further, in his Deposition, Smith states that he directly relied on this
policy when making his decision to test JT. Smith’s limited investigation into JT’s
alleged comments, and Smith’s own statement that he relied only on the statements of
Kabealo and CP when making his decision to test JT, also show that Smith acted pursuant
to this official, unconstitutional policy. Thus, this written school policy can be said to
have “caused” the violation of JT’s Fourth Amendment right, and Defendants Smith and
McIIrath, sued in their official capacities, and municipal Defendant Academy are not
entitled to summary judgment on the basis of qualified immunity.
In sum, none of the Defendants considered by this Court in the qualified
immunity analysis, including Smith, McIIrath, and the Academy, is entitled to qualified
immunity; Gould and Kabealo are exempt from the analysis. Further, this Court has

27

found that whether JT made the alleged statement is a material disputed fact that
precludes summary judgment, and, in the alternative, even when viewing the facts in the
light most favorable to Defendants, Smith subjected JT to an unconstitutional search.
Accordingly, Defendants’ Motion for Summary Judgment as to Count I, violation of the
Fourth Amendment under 42 U.S.C. §1983, is DENIED.
B. 42 U.S.C. § 1983, Civil Conspiracy Claims
Defendants, in their Motion, contend that they are entitled to summary judgment on
Defendants civil conspiracy claim because: (1) the Plaintiffs did not plead the claim with
sufficient specificity; (2) all admissible evidence in this case demonstrates that Defendants all
played separate and discreet roles and did not advocate, confer or agree about any courses of
action regarding the decision to subject JT to a drug test; and (3) Defendants civil conspiracy
claim is barred by the intra-corporate conspiracy doctrine.
An action for civil conspiracy may be brought under 42 U.S.C. § 1983 when parties
conspire to deprive the plaintiff of his federal statutory or constitutional rights. Adickes v. Kress
& Co., 398 U.S. 144 (1970) (allowing such a claim to proceed beyond the summary judge stage).
A civil conspiracy is an agreement by two or more persons to injure another by unlawful action.
Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir.1985). To find the existence of a civil
conspiracy, it is not necessary to show express agreement among all the conspirators, nor is it
necessary to show that each conspirator knew all of the details of the illegal plan or all of the
participants involved. Id. Thus, to sustain a § 1983 conspiracy claim, the plaintiff must show: (1)
that there was a single plan; (2) that the alleged co-conspirator shared in the general
conspiratorial objective; and (3) that an overt act was committed in furtherance of the conspiracy
that caused injury to the plaintiff. Id. at 944.

28

The Court finds that the Defendants have failed to set forth evidence sufficient to show a
material fact in dispute as to their claim that the Defendants were engaged in a conspiracy to
deprive JT of his Fourth Amendment rights. Although Plaintiffs have shown a violation of JT’s
constitutional rights, Plaintiffs fail to present facts to meet the standard for a conspiracy under §
1983. As Plaintiffs note, Smith certainly relied on the statements of Kabealo and CP when he
made the decision to search JT in contravention of his Fourth Amendment right. Additionally,
Smith certainly relied on Gould’s assistance to perform the search. These facts fail to show,
however, a material disputed fact concerning the existence of a shared single plan to search JT in
contravention of his Fourth Amendment rights, or Defendants’ alleged shared objective to search
JT in contravention of his Fourth Amendment rights. The facts presented by Plaintiffs merely
show that Smith relied on the assistance of others when making his independent, discretionary
decision to search JT.
Since the Plaintiffs have not presented sufficient evidence to support their claim for Civil
Conspiracy, the Court GRANTS summary judgment in favor of all of the Defendants on the
Plaintiffs’ claim of civil conspiracy.
C. Negligent Misidentification
Defendants argue that they are entitled to summary judgment on Plaintiffs’ claim of
tortious misidentification. First, Defendants argue that state qualified immunity under O.R.C. §
2744.03 shields both Defendant Academy and individual school officials from liability.
Defendants argue specifically that Plaintiffs cannot and do not present a triable issue with respect
to conduct that would defeat political subdivision/employee/agent immunity pursuant to O.R.C.
2744.03(A), such as evidence that any Defendant acted outside of the scope of employment or
with malicious purpose.

29

Plaintiffs retort that Defendants raised no facts to support their claim that they are entitled
to state law immunity on Plaintiffs’ negligent misidentification claim, thus relieving Plaintiffs of
their burden to raise a triable issue in its response. Thus, Plaintiffs argue that Defendants’ motion
should fail.
To make a claim for the tort of negligent identification, or misidentification, Plaintiffs
must show that a person was negligently improperly identified as being responsible for
committing a violation of law, and suffered injury as a result of the wrongful identification.
Wigfall v. Society Natl. Bank (1995), 107 Ohio App.3d 667, 669 N.E.2d 313. Plaintiffs must also
show “a duty, a breach of that duty, proximate cause and injury before the person improperly
identified for committing a crime can establish a valid claim.” Id. at 673; see also Barilla v.
Patella, 144 Ohio App. 3d 524, 534 (2001).
The Court need not apply the law of negligent identification to the case sub judice as state
law immunity attaches to each Defendant implicated in this claim. O.R.C. § 2744.03(A)(3),
relating to qualified immunity for political subdivisions, states in relevant part:
The political subdivision is immune from liability if the action or failure to act by
the employee involved that gave rise to the claim of liability was within the
discretion of the employee with respect to policy-making, planning, or
enforcement powers by virtue of the duties and responsibilities of the office or
position of the employee.
O.R.C. § 2744.03(A)(6)(a) and 2744.03(A)(6)(b), concerning qualified immunity for state
employees, states in relevant part:
“the [political subdivision] employee is immune from liability unless one of the
following applies: (a) The employee's acts or omissions were manifestly outside
the scope of the employee's employment or official responsibilities; (b) The
employee's acts or omissions were with malicious purpose, in bad faith, or in a
wanton or reckless manner.”

30

Under O.R.C. § 2744.03(A)(6), Defendants sufficiently raised their sovereign immunity claim on
behalf of individual school employees by stating that the actions school employee Defendants
took that led to the false identification of JT as someone who had smoked marijuana: (1) took
place within the scope of their official responsibilities; and (2) were without malice, bad faith,
wantonness or recklessness. Once Defendants made the claim that there were no facts showing
Defendants actions identifying JT as one who smoked marijuana were outside of the scope of
their employment, or made maliciously, then the burden shifted to Plaintiffs to raise a material
fact putting those assertions in dispute.
This Court determines that Kabealo’s, Smith’s and Gould’s actions, as they pertain to the
negligent misidentification claim, were well within the scope of their employment and official
responsibilities: it was within the scope of Kabealo’s responsibilities to report to the school
principal what he thought was a statement by a student that he had smoked marijuana; it was
within the scope of Smith’s duties to determine whether a student should be tested for suspected
drug use; and, it was within Gould’s scope of employment to administer a drug test to students.
Further, the evidence Plaintiffs presented to this Court does not include any claim that any of the
three Defendants potentially involved in the claim of negligent identification harbored malice
toward JT, or made in bad faith the incorrect conclusion that he was under the influence of
marijuana.
Lastly, Defendant Academy is shielded from any liability under O.R.C. § 2744.03(A)(3),
because all of Defendants’ actions which gave rise to the negligent misidentification claim were
within the discretion of the Defendants’ individual enforcement powers under the duties and
responsibilities of their position. Indeed, Smith, though he acted pursuant to a school policy
when he decided to test JT, had final discretion in whether to administer a drug test; Gould was

31

tasked with enforcing school health protocol and interpreting the test; and Kabealo was tasked
with enforcing school rules.
Thus, Defendants Motion for Summary Judgment is GRANTED in regards to Count V,
Tortious Misconduct: Negligent Misidentification.
D. Spoliation of Evidence
Defendants argue that they are entitled to summary judgment on Plaintiffs’ Spoliation of
Evidence claim. First, Defendants argue that the complaint itself does not state which Defendants
destroyed or failed to maintain the evidence, nor does the complaint identify which evidence was
destroyed. Plaintiffs retort—still without identifying which Defendants are targeted in this claim
or which evidence was allegedly destroyed—that under Celotex Corp. v. Catrett the burden is on
the Defendants to identify those portions of the materials in the record that demonstrate the
absence of a genuine issue of material fact.
While Plaintiffs correctly cite to the holding in Celotex, they misapply that holding to the
case sub judice. Defendants met their initial burden of showing no genuine issue of material fact
by pointing out that in the complaint, Plaintiffs did not identify who destroyed evidence, or what
evidence was destroyed. Then, in their Opposition Motion, Plaintiffs still do not identify what
evidence was destroyed and by whom. Neither do Plaintiffs state in the fact section of their
Opposition Motion that Defendants destroyed any evidence. Without these essential elements of
the spoliation claim, there is no genuine issue of material fact. Thus, on this ground alone,
Defendants are entitled to summary judgment on Plaintiffs’ spoliation claim.
It is only by going beyond the pleadings and searching the Plaintiffs’ depositions that the
Court can conclude that the Plaintiffs refer to Defendants’ failure to provide Plaintiffs with the

32

urine screen kit administered to JT on April 20, 2012. Defendants make the same assumption in
their Motion.
Defendants argue that insofar as the claim relates to the destroyed urine test, there is no
genuine issue of material fact regarding Plaintiffs’ claim of spoliation of evidence, and
Defendants are entitled to summary judgment as a matter of law. In Ohio, spoliation of evidence
is recognized as an independent tort cause of action. The elements for the cause of action are as
follows:
(1) there is a pending or probable litigation involving the plaintiff; (2) knowledge
on the part of the defendant that the litigation exists or is probable; (3) willful
destruction of the evidence by the defendant designed to disrupt the plaintiff's
case; (4) disruption of the plaintiff's case; and (5) damages proximately caused by
the defendant's actions. A claim for spoliation of evidence may be brought at the
same time as the primary action.
In re Smartalk Teleservices, Inc. Sec. Litig., 487 F. Supp. 2d 947, 949 (S.D. Ohio 2007)
(citing Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29, 615 N.E.2d 1037
(1993)).
In the case sub judice, the urine screen is relevant only insofar as it assists Plaintiffs in
their Fourth Amendment and Civil Conspiracy federal law claims, and state claim for negligent
misidentification. This Court has already determined that Plaintiffs have shown a violation of
JT’s constitutional rights, and that determination did not depend in any way on the actual results
shown by the urine screen. As the urine screen pertains to the claim of negligent
misidentification, this court has already held that Plaintiffs’ claim fails because Defendants are
shielded from the negligent misidentification claim by state qualified immunity. Accordingly,
Plaintiffs cannot show any disruption of their case from the alleged spoliation of evidence.
Plaintiffs also argue that Defendants erroneously apply Ohio law to the spoliation claim,
since the Sixth Circuit recently held in Adkins that Federal law, not state, law applies to
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spoliation of evidence sanctions. Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (holding
federal, not state law, governs discovery sanctions for spoliation of evidence because: (1) the
authority to impose sanctions for spoliated evidence arises not from substantive law but, rather,
“from a court’s inherent power to control the judicial process;” and (2) “a spoliation ruling is
evidentiary in nature and federal courts generally apply their own evidentiary rules in both
federal question and diversity matters”). Plaintiffs misread the Sixth Circuit holding in Adkins.
While federal law does indeed govern sanctions as they pertain to trial and discovery after
Adkins, there is no independent federal cause of action, or “substantive law,” for spoliation of
evidence.
Thus, there is no genuine issue of material fact as to Plaintiffs’ spoliation claim, as
Plaintiffs do not present any material disputed facts, and, even if they had, any alleged
destruction of the urine screen administered to JT on April 20, 2012 does not disrupt Plaintiffs’
ability to try its case. Accordingly, Defendants’ request for summary judgment on Count II of the
Complaint, Interference with and/or Destruction of Evidence, is hereby GRANTED.
E. Defamation
Defendants argue that they are entitled to Summary Judgment as to Plaintiffs’ state law
defamation claim, which alleges that “Defendants, any one or more of them, falsely stated that
JT did or said he did smoke and/or otherwise possessed marijuana,” that this statement “reflects
adversely on his character which will hold him in contempt or injure him in his trade or
profession,” and “were made without privilege and within the range of third parties.” First,
Defendants argue that in their complaint, Plaintiffs do not identify which specific Defendants
made defamatory statements concerning JT. Defendants state that to the extent that Plaintiffs
were referring to Defendant Kabealo’s and CP’s statement to Defendant Smith concerning JT’s

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alleged statement, Defendants argue that there is no genuine issue of material fact regarding
whether Defendants are entitled to qualified immunity under O.R.C. § 2744.
Plaintiffs argue that the following material facts in dispute preclude summary judgment
on their defamation claims: (1) whether Kabealo heard JT say he smoked marijuana; (2) Smith
and Gould’s statement of a positive test; and (3) whether Smith made a statement to CP within
earshot of other students that JT was expelled for smoking marijuana.
Under Ohio law, the elements of a defamation claim, whether libel or slander, are “(a) a
false and defamatory statement concerning another; (b) an unprivileged publication to a third
party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either
actionability of the statement irrespective of special harm or the existence of special harm caused
by the publication.” Akron–Canton Waste Oil, Inc. v. Safety–Kleen Oil Serv., Inc., 81 Ohio
App.3d 591 (Ohio Ct.App.1992) (internal quotation marks omitted). To survive a motion for
summary judgment in a defamation action, the plaintiff must make a sufficient showing of the
existence of every element essential to his or her case. Daubenmire v. Sommers, 2004-Ohio-914,
¶ 79.
Defendant Academy is shielded from the defamation claim under O.R.C. §
2744.03(A)(3), concerning qualified immunity for political subdivisions. Similarly, Defendants
Smith and Kabealo are shielded from the defamation claim under O.R.C. § 2744.03(A)(6)(a)-(b),
concerning qualified immunity for state employees.
1. Kabealo’s Statement to Smith
First, Kabealo is shielded by state sovereign immunity for any potential defamation claim
against him concerning his statement to Defendant Smith. Such statement was clearly within the
scope of his duties to report to the principal any student behavior that he deemed suspect.

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Additionally, the evidence before this court does not show any indication that Kabealo harbored
any malicious intent toward JT in reporting what he believed was a statement concerning JT’s
drug use. Thus, Kabealo is entitled to state qualified immunity for his statement to Smith that he
heard JT say that JT had smoked marijuana.
2. Defendant Smith and Gould’s statement
Similarly, the evidence before the Court shows no disputed facts undermining Gould and
Smith’s assertions that both were acting within the scope of their employment and neither was
acting with malice when they made the incorrect conclusion about JT’s drug test. It was clearly
within the scope of both Smith’s and Gould’s employment to administer a drug test for a student
suspected of drug use. The fact that they may have done so improperly is not relevant to this
analysis. Additionally, the evidence before this Court, and the circumstances regarding the
alleged statements, do not show any indication that Smith of Gould were motivated by malice or
bad faith when they reported what they believed was a positive drug screen. Thus, both
Defendant Smith’s and Gould’s statements are shielded by state sovereign immunity from any
potential liability.
3. Smith’s statement to CP
Finally, Plaintiffs state that there is a genuine issue of material fact concerning whether
Smith made a statement to CP within earshot of other students that JT was expelled for smoking
marijuana. Plaintiffs, however, do not sufficiently state facts to raise this claim. Plaintiffs do not
provide any explanation of the context of this alleged statement; they do not state when it was
made, why it was made, or who, if anyone, actually heard it besides CP.
Further, CP played a part in Smith’s initial investigation; thus, it was not manifestly
outside the scope of Smith’s duties to tell CP the result of the investigation. Neither is there any

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evidence before this Court showing that Smith made such a statement out of malice or in bad
faith. At the time in question, Smith believed that JT had been suspended for a positive drug test,
and so relaying such information to CP assumedly was not made in bad faith, but out of a
reasonable belief, without any facts presented to show otherwise. Thus, Defendant Smith’s
alleged statements to CP are shielded by state sovereign immunity from any potential liability.
Accordingly, Defendants’ request for summary judgment on Count III of the Complaint,
Defamation, is hereby GRANTED.
F. Filial Consortium
In their complaint, Plaintiffs raise the state law cause of action of loss of filial
consortium. Under Ohio law, a loss of consortium claim is a derivative claim and is dependent
upon a defendant committing a cognizable tort upon the parent of the child making the claim, or
the child of the parent making the claim. See Ward v. Cnty. of Cuyahoga, 721 F. Supp. 2d 677,
695-96 (N.D. Ohio 2010) (tort committed upon the parent, with child making the filial
consortium claim); Wilson v. Columbus Bd. of Educ., 589 F.Supp.2d 952, 971–72 (S.D.Ohio
2008) (citing Gallimore, 67 Ohio St.3d 244, 617 N.E.2d 1052) (tort committed upon the child,
with parent making the filial consortium claim). As the cause of action for filial consortium is a
derivative claim dependent on a defendant committing a cognizable tort, and this Court has
found in Defendants’ favor in their Motion for Summary Judgment on all of Plaintiffs’ state law
tort claims, this Court GRANTS Summary Judgment to Defendants on Plaintiffs’ filial
consortium claim.
G. Punitive Damages
Finally, Defendants request Summary Judgment on Plaintiffs’ punitive damages claim.
As this Court has found in Defendants’ favor in their Motion for Summary Judgment on all of

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Plaintiffs’ state law claims, this Court need not address Plaintiffs’ claim for punitive damages as
to any state law claims.
In terms of Plaintiffs’ federal claim, the only claim which survives Summary Judgment
upon which punitive damages could be based are the claims against Smith, McIIrath and the
Academy for a violation of JT’s Fourth Amendment right under § 1983. Punitive damages may
be awarded in a § 1983 action when a defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference to the federally protected
rights of others. Wilson v. Columbus Bd. of Educ., 589 F. Supp. 2d 952, 973 (S.D. Ohio 2008)
(Marbley, J.) (citing Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)).
The same factual issues in dispute under the Fourth Amendment reasonable suspicion
analysis are in dispute here. There is a genuine dispute as to whether the Defendant Smith had
reasonable suspicion to search JT, and thus a genuine dispute as to whether the search of JT
involved callous indifference to his federally protected constitutional right against unreasonable
search and seizure. Further, in the alternative, this Court has stated that even when viewing the
facts in the light most favorable to Defendants, Smith did not have reasonable suspicion to search
JT under the circumstances; accordingly, a reasonably jury could find that Smith’s actions were
callously indifferent to JT’s clearly established constitutional right. Thus, the Court DENIES
Defendants’ motion with respect to the punitive damages claim.
IV. CONCLUSION
Based on the foregoing, the Court finds Defendants’ Motion for Summary Judgment is
DENIED as to Count I, Plaintiffs’ Fourth Amendment claim under 42 U.S.C § 1983, and Count
VII, Punitive Damages as to Plaintiffs’ Fourth Amendment claim under 42 U.S.C. § 1983.

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Defendants’ Motion for Summary Judgment is GRANTED as to all other Counts in the
Complaint.

IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

DATED: February 9, 2015

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