Recommendation of Magistrate Judge Thomas M. Blewitt. Magistrate
Judge Blewitt proposed that the Court grant the summary judgment
motions of Callahan and Mid-Valley School District, his employer.
Kurilla contends that Magistrate Judge Blewitt erred in
applying the substantive due process "shocks the conscience" test
to Callahan's conduct, asserting that the applicable test is
provided by the Fourth Amendment "reasonableness" standard.
Kurilla argues that the fact that Callahan was convicted of the
summary offense of harassment in connection with the incident
giving rise to this lawsuit entitles Kurilla to summary judgment
on liability. Alternatively, Kurilla contends that there is a
triable issue as to whether Callahan's conduct "shocks the
Having carefully considered the issues de novo, I find that
the momentary use of force by a school teacher is to be judged by
the shocks the conscience standard. I also find that Callahan's
conduct, which consisted of striking a blow to Kurilla's chest
that resulted in bruising but otherwise did not require medical
care, was not so "`brutal' and `offensive to human dignity'" as
to shock the judicial conscience. Johnson v. Glick,
481 F.2d 1028, 1033 n. 6 (2d Cir.), cert. denied, 414 U.S. 1033, 94
S.Ct. 462, 38 L.Ed.2d 324 (1973). Accordingly, I will adopt
Magistrate Judge Blewitt's recommendation that Callahan's summary
judgment motion be granted.
While Callahan's conduct did not violate substantive due
standards, Mid-Valley School District may nonetheless be held
accountable for having established a policy or custom that caused
the injury allegedly sustained by Kurilla. Because I find that
Kurilla has presented sufficient evidence to warrant a trial on
the question of the existence of a policy or custom to tolerate
use of excessive force by a teacher, the School District's
summary judgment motion will be denied.
On October 3, 1995, Kurilla was an eighth grade student at Mid
Valley Secondary Center. (Kurilla's Aff., Dkt. Entry 39 at ¶ 2.)
According to Kurilla, on that date, he was attending a study hall
supervised by Defendant Kevin Callahan ("Callahan"), where
Kurilla got into a fight with another student. Id. at ¶ 3.
Callahan called both Kurilla and the other student to his desk,
and asked the other student what happened. Id. at ¶ 4. Kurilla
interrupted and began explaining his side of the story, to which
Callahan responded by telling Kurilla to "Shut up or I will lay
you out on the floor." Id. at ¶ 4. Kurilla attempted again to
tell his side of the story when Callahan grabbed him by the shirt
with clenched hands and proceeded to pull Kurilla very hard,
causing Kurilla's chest to strike Callahan's closed fists. Id.
at ¶ 5. Kurilla claims that Callahan's action, which allegedly
had the identical effect as if Callahan punched him, resulted in
bruising on Kurilla's chest. Id. at ¶ 5.
The bruise was on Kurilla's right side, above the nipple.
(Kurilla Dep. at 60.) In addition to the bruise on his chest,
Kurilla alleges that he had a red mark on the back of his neck
and on the left side of his chest. Id. at 61. The only
photographs taken were of the bruise on Kurilla's right side,
above the nipple. Id. According to Kurilla's father, the
photographs were taken two or three hours after the incident with
Callahan. (Kurilla Sr. Dep. at 26, 28.)
Following the incident with Callahan, Kurilla saw the family
doctor, Dr. Gazmen. (Id. at 29.) Dr. Gazmen performed a
complete examination, but no x-rays were taken. (Id. at 37.)
Dr. Gazmen concluded that there was no internal damage and that
there was no need to prescribe any medication or to impose any
restrictions on Kurilla. (Id. at 69-70.) Kurilla's father was
told to call Dr. Gazmen if there were any problems, but Kurilla's
father never called. Id.
At the time of the altercation, Kurilla was five (5) feet,
eight (8) to nine (9) inches
tall and weighed between 175 to 180 pounds. (Id. at 40.)
Kurilla's father claims that his son now suffers from anxiety,
but he has not taken him to any doctors, aside from the one visit
to the family doctor discussed above. (Id. at 43-45, 49.)
Moreover, Kurilla has no plans to seek further treatment in the
future, and the total medical bills incurred as a result of the
incident was $35. (Id. at 44-45, 71.)
Callahan was subsequently tried and convicted of the summary
offense of harassment of Kurilla.*fn1 Callahan was also
convicted of harassment of two other students in separate
incidents, one occurring before the matter involving Kurilla and
one occurring two days after the Kurilla incident. Callahan
appealed his guilty verdict to the Pennsylvania Superior Court,
which dismissed his appeal. Kurilla filed this action on February
6, 1997, asserting claims under 42 U.S.C. § 1983 and state law.
A motion for summary judgment was filed by Defendant Mid Valley
School District ("School District") on February 2, 1998. (Def.'s
Mot.Summ.J., Dkt. Entry 26 at 1.) The School District argued that
Kurilla failed to adduce evidence demonstrating the School
District had a policy or custom of tolerating its teachers'
violent behavior towards students, or that the School District
created a danger to students. Id. at 2. On January 15, 1999, a
motion for partial summary judgment was filed by Callahan.
(Def.'s Mot. Partial Summ.J., Dkt. Entry 42.) Callahan sought
dismissal of Kurilla's § 1983 claim, asserting that Callahan's
conduct was not sufficient to impose liability under § 1983.
(Def.'s Supp.Br., Dkt. Entry 44 at 4.) On January 25, 1999,
Kurilla filed a motion for partial summary judgment with respect
to liability on his civil rights claim, alleging that Callahan's
unreasonable conduct violated Kurilla's Fourth and Fourteenth
Amendment rights. (Pl.'s Mot. Partial Summ.J., Dkt Entry 45 at
Magistrate Judge Blewitt, to whom this matter had been assigned
for pretrial management, concluded that the School District and
Callahan were entitled to summary judgment. With respect to the
School District, Magistrate Judge Blewitt reasoned that the
plaintiffs failed to present competent evidence sufficient to
warrant a trial on the questions of whether the School District
had a policy or custom of tolerating violent behavior by its
teachers towards students, or whether it acted in willful
disregard for the safety of Kurilla. As to Callahan, Magistrate
Judge Blewitt rejected Kurilla's assertion that Fourth Amendment
principles were applicable. Instead, Magistrate Judge Blewitt
found that Kurilla's claims were properly evaluated under the
substantive due process component of the Fourteenth Amendment and
its "shock the conscience" standard. Concluding that Kurilla's
claim failed to "shock the conscience," Magistrate Judge Blewitt
recommended that Callahan's motion for partial summary judgment
be granted. Magistrate Judge Blewitt also recommended that
Kurilla's motion for partial
summary judgment be denied and that supplemental jurisdiction
over the pendent state law claims be declined. The matter is now
before the Court on Kurilla's objections.
A. Summary Judgment Standard
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 that the moving party is entitled to
judgment as a matter of law." Fed. R.Civ.P. 56(c); see Jones v.
Witinski, 931 F. Supp. 364, 365. (M.D.Pa. 1996). In Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986), the Supreme Court opined:
[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for
discovery and upon motion, against a party who fails
to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which the party will bear the burden of
proof at trial. In such a situation, there can be `no
genuine issue as to any material fact,' since
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party
is `entitled to judgment as a matter of law' because
the nonmoving party has failed to make a sufficient
showing on an essential element of her case with
respect to which she has the burden of proof.
An issue of fact is "`genuine' only if a reasonable jury,
considering the evidence presented, could find for the non-moving
party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "Material facts are those
which will affect the outcome of the trial under governing law."
Jones v. Witinski, 931 F. Supp. at 365. To determine whether an
issue of material fact exists, the court must consider the
evidence in the light most favorable to the nonmovant. White v.
Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).
B. The Excessive Force Claim Under § 1983
1. The Constitutional Standard to be Applied in School
Excessive Force Cases.
The threshold inquiry in addressing Kurilla's § 1983 excessive
force claim involves "identifying the specific constitutional
right allegedly infringed. . . ." Graham v. Connor,
490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Identification
of the specific constitutional right allegedly infringed is
essential because the standard against which the defendant's
conduct is to be assessed depends upon the right that is
purportedly violated. See Metcalf v. Long, 615 F. Supp. 1108,
1118 (D.Del. 1985). For example, an excessive force claim in the
context of an arrest is analyzed under the Fourth Amendment
reasonableness standard. Graham, 490 U.S. at 395-97, 109 S.Ct.
1865. But once a person has been convicted and sentenced, an
excessive force claim is analyzed under the Cruel and Unusual
Punishments Clause of the Eighth Amendment. Metcalf, 615
F. Supp. at 1119. In Eighth Amendment excessive force cases, "the
core judicial inquiry is . . . whether force was applied in a
good faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm." Hudson v.
McMillan, 503 U.S. 1, 6, 112 S.Ct. 995, 999, 117 L.Ed.2d 156,
166 (1992). Claims of abusive treatment of pretrial detainees are
analyzed under substantive due process principles. Graham, 490
U.S. at 395 n. 10, 109 S.Ct. 1865; Bell v. Wolfish,
441 U.S. 520, 535-39, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Williams v.
Mussomelli, 722 F.2d 1130, 1133 (3d Cir. 1983); Patzig v.
O'Neil, 577 F.2d 841, 847 (3d Cir. 1978). The applicable test
under the Due Process Clause is whether the defendant's conduct
"shocks the conscience." County of Sacramento v. Lewis,
523 U.S. 833, 118 S.Ct. 1708, 1717, 140 L.Ed.2d 1043 (1998); Fagan
v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en
Kurilla argues that the Fourth Amendment "reasonableness"
standard should be applied in this case. The premise of this
argument is that he was subjected to a "seizure" when Callahan
grabbed his shirt and punched him in the chest. Pointing out that
the Court in Graham said that a "seizure" occurs when a
government actor "`by means of physical force or show of
authority, . . . in some way restrains the liberty of a citizen,'
" 490 U.S. at 395 n. 10, 109 S.Ct. 1865, Kurilla asserts that
Callahan's conduct must be regarded as a Fourth Amendment
seizure. Based upon the Pennsylvania state court's finding in
connection with the harassment charge that Callahan's use of
force was not justifiable under the circumstances, Kurilla
maintains that he is entitled to a finding in his favor on
Callahan's § 1983 liability.
Graham involved a § 1983 claim against several police
officers accused of using excessive force during an investigatory
stop. 490 U.S. at 389, 109 S.Ct. 1865. Graham discouraged use
of substantive due process analysis, and required that courts
first consider whether there is a specific constitutional right
infringed by the challenged action. 490 U.S. at 394, 109 S.Ct.
1865. The Court observed that in most instances, the Fourth or
the Eighth Amendment would supply the constitutional peg on which
to hang the civil rights claim.*fn2 As noted above, in the
context of a law enforcement officer's investigatory stop, the
Court in Graham found that Fourth Amendment standards were
Prior to Graham, our court of appeals had held that in the
school physical discipline context, a government actor's conduct
is to be assessed under substantive due process principles. See
Metzger By and Through Metzger v. Osbeck, 841 F.2d 518 (3d Cir.
1988). Specifically, in Metzger, a teacher, after hearing
Metzger use foul language, placed his arms around Metzger's neck
and shoulder area, and lifted him to the point where Metzger felt
pressure underneath his chin and had to stand on his toes. When
the teacher released him, Metzger, who had lost consciousness,
fell face down, lacerated his lip, broke his nose, fractured his
teeth, and sustained other injuries that required
hospitalization. In reversing the grant of summary judgment in
favor of the teacher, the majority in Metzger held that "[a]
decision to discipline a student, if accomplished through
excessive force and appreciable physical pain, may constitute an
invasion of the child's Fifth Amendment liberty interest in his
personal security and a violation of substantive due process
prohibited by the Fourteenth Amendment." Id. at 520.*fn3
Kurilla contends that Metzger is not controlling here because
it was decided prior to Graham. According to Kurilla, Graham
changed the legal landscape, so that "the use of excessive force
by government actors is a seizure governed by the Fourth
Amendment." (Br. in Supp. of Objections to the Report and
Recommendation, Dkt. Entry 57 at 29.)
Contrary to Kurilla's assertion, Graham does not mandate
application of Fourth Amendment principles to all claims of
excessive force by all government actors. Factually, Graham
is limited to claims against law enforcement officers engaged
in law enforcement activities. 490 U.S. at 394, 109 S.Ct. 1865
("Where . . . the excessive force claim arises in the context of
an arrest or investigatory stop of a free citizen, it is most
properly characterized as one invoking the protections of the
Fourth Amendment. . . .") Graham recognized that some excessive
force claims, such as those made by pretrial detainees, would
properly be analyzed under substantive due process standards.
Id. at 395 n. 10, 109 S.Ct. 1865.
In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998), the Court specifically disclaimed
any intent to have all constitutional claims relating to
physically abusive government conduct analyzed under the Fourth
or Eighth Amendments. Id. at 1715. As the Court explained, "
`Graham simply requires that if a constitutional claim is
covered by a specific constitutional provision, . . . the claim
must be analyzed under the standard appropriate to that specific
provision, not under the rubric of substantive due process.'"
Id., quoting United States v. Lanier, 520 U.S. 259, 117 S.Ct.
1219, 1228 n. 7, 137 L.Ed.2d 432 (1997). Thus, substantive due
process analysis remains appropriate if the plaintiff's claim is
not "covered by" the Fourth Amendment. Id.
In this case, the question is whether the momentary use of
force by a teacher against a student who refuses to be quiet
despite having been admonished not to interrupt another student's
account of an in-classroom altercation is "covered by" the Fourth
Amendment prohibition against unreasonable seizures. In making
this determination, it is important to bear in mind the "unique
constitutional position" of public school students. Wallace by
Wallace v. Batavia School District 101, 68 F.3d 1010, 1013 (7th
Cir. 1995). "Once under the control of the school, students'
movement and location are subject to the ordering and direction
of teachers and administrators." Id. at 1013. Public school
children are subject to the state's authority in a way that has
been described as "custodial and tutelary, permitting a degree of
supervision and control that could not be exercised over free
adults." Vernonia School District 47 J. v. Acton, 515 U.S. 646,
655, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).
Fourth Amendment jurisprudence dealing with "seizures"
generally focuses on "the initial deprivation of liberty." Riley
v. Dorton, 115 F.3d 1159, 1162 (4th Cir. 1997) (en banc). As
recognized in Ingraham, the Fourth Amendment's "principal
concern . . . is with intrusions on privacy. . . ." 430 U.S. at
674 n. 42, 97 S.Ct. 1401. Where the constitutional concern is not
"`with the initial decision to detain an accused and the
curtailment of liberty that such a decision necessarily entails,'
but rather with the conditions of ongoing custody following such
curtailment of liberty," substantive due process principles
inform the judicial analysis. Id. at 1162, quoting Bell v.
Wolfish, 441 U.S. at 533-34, 99 S.Ct. 1861. A teacher's use of
physical force is more properly regarded as a condition of the
school environment in which liberty is necessarily already
curtailed. Thus, the factual context presented in this case is
not "covered by" the Fourth Amendment.*fn4
As pointed out by Kurilla, the Third Circuit has not explicitly
impact of Graham on its holding in Metzger that substantive
due process principles inform the analysis of an excessive force
claim against a school teacher.*fn5 In Jones v. Witinski,
931 F. Supp. 364, 366-67 (M.D.Pa. 1996), the Hon. James F. McClure of
this Court did consider the impact of Graham and held that the
"shocks the conscience" test should continue to be applied to
school excessive force cases. In Lillard v. Shelby County Board
of Education, 76 F.3d 716, 724-25 (6th Cir. 1996), the court
held that a claim of physical abuse by a school teacher was
properly analyzed under substantive due process principles,
explaining that such claims "are premised on the alleged
violation of a constitutionally protected liberty interest,
within the meaning of the Fourteenth Amendment, in their personal
bodily integrity." This conclusion is rooted in Ingraham v.
Wright, supra, which held that deliberate application of force
by school officials, "restraining the child and inflicting
appreciable physical pain, implicates liberty interests protected
by the Fourteenth Amendment." Ingraham v. Wright, 430 U.S. at
674, 97 S.Ct. 1401. Metzger relied on Ingraham to hold that
use of force by a school teacher is governed by substantive due
Kurilla notes that some other courts have applied the Fourth
Amendment in the school discipline context. (Br. in Supp. of
Objections to Report and Recommendation, Dkt. Entry 57 at 27-28.)
With one exception, however, the cases cited by Kurilla involved
factual scenarios more closely aligned with Fourth Amendment
protection. For example, in Hassan v. Lubbock Independent School
District, 55 F.3d 1075 (5th Cir. 1995), the plaintiff complained
of being placed in a holding cell for approximately 50 minutes
while fellow students toured a juvenile detention center. In
Edwards v. Rees, 883 F.2d 882 (10th Cir. 1989), the challenged
action involved a 20-minute interrogation. In Rasmus v.
Arizona, 939 F. Supp. 709 (D.Ariz. 1996), the student had been
locked in a "time out room" for approximately 10 minutes. In
Bills by Bills v. Homer Consolidated School District No. 33-C,
959 F. Supp. 507 (N.D.Ill. 1997), a claim that a principal
repeatedly removed a student from class and interrogated him on a
daily basis for at least five days was analyzed under Fourth
Amendment principles on the ground that the student had been
"seized." None of the cases involved the application of physical
force. Moreover, these precedents are less persuasive because the
courts did not discuss the fact that students in public school
are subject to the control of school authorities and may be
ordered to appear before a principal or go to a particular
The only case cited by Kurilla that applied Fourth Amendment
principles to a claim of excessive force by a teacher was
Wallace, 68 F.3d 1010. In Wallace, a teacher, in an effort to
break up a fight between two students, grabbed one of the
students by her wrist and elbow to move her out of the classroom.
Id. at 1011. While finding that the Fourth Amendment "covered"
this scenario, the Seventh Circuit also noted that there is
"little parallel . . . between the school and law enforcement
situations when there is a seizure of the person." Id. at 1014.
Explaining that "[t]he basic purpose for the deprivation of a
student's personal liberty by a teacher is education, while the
basic purpose for the deprivation of liberty of a criminal
suspect by a police officer is investigation or apprehension,"
the court held that "application of the Fourth Amendment is
necessarily different" in the school context. Id. (emphasis
added). The court elaborated:
The reasonableness of a Fourth Amendment seizure of a
public school student by a teacher must be evaluated
context of the school environment, where restricting
the liberty of students is a sine qua non of the
educational process. Deprivations of liberty in
schools serve the end of compulsory education and do
not inherently pose constitutional problems.
The premise of a general constitutionally permissible
liberty restriction is, of course, not the case in
the law enforcement context. Seizures of individuals
by police are premised on society's need to apprehend
and punish violators of the law. As such, they
inherently threaten the individual's liberty to live
free of the criminal justice process. There is no
analogous liberty for students to live free of the
Id. at 1013-14. The court went on to apply an objective
reasonableness standard that purports to take into account the
"special needs" of the school environment. Under the test applied
by the Seventh Circuit, the court does not concern itself with
the teacher's intentions, but instead with whether the alleged
seizure "was objectively unreasonable."*fn6
Wallace recognized that the school environment is
qualitatively different than the law enforcement environment.
Public school students' liberty interests are necessarily
restrained in a manner that is not present outside the school
setting. Some official conduct that would not be tolerated
outside school must be allowed in the school. "[A] proper
educational environment requires close supervision of school
children, as well as the enforcement of rules against conduct
that would be perfectly permissible if undertaken by an adult."
T.L.O., 469 U.S. at 339, 105 S.Ct. 733. Wallace accommodates
this distinctive environment by qualifying the "objective
reasonableness" inquiry. But Wallace suggests no meaningful
standard by which this accommodation is to be effected. While the
"shocks the conscience" test has been justly criticized as
"amorphous and imprecise," Fagan, 22 F.3d at 1308, standards
have been established for its application. More importantly,
substantive due process has been the basis for considering claims
of governmental abuse of power where the conduct in question does
not implicate a specific constitutional protection. See County
of Sacramento v. Lewis, supra (refusing to apply Fourth
Amendment to police chase, but instead applying the "shocks the
conscience" test). The momentary application of force by a
teacher in reaction to a disruptive student is a scenario to
which the Fourth Amendment does not textually or historically
apply. I thus decline to follow Wallace.
In short, the momentary use of physical force by a teacher in
reaction to a disruptive or unruly student does not effect a
"seizure" of the student under the Fourth Amendment. Because
Kurilla's claim is not governed by the Fourth Amendment,
substantive due process principles will be applied to determine
whether there is a triable excessive force claim here.
2. Application of the Shocks-the-Conscience Test
Substantive due process has been described as "the right to be
free from state intrusions into realms of personal privacy and
bodily security through means so brutal, demeaning and harmful as
literally to `shock the conscience' of the court." Lillard v.
Shelby County Board of Education, 76 F.3d 716, 725 (6th Cir.
1996). The threshold for establishing a constitutional tort for
excessive use of force is set so high in light of Supreme Court
admonitions "against an overly generous interpretation of the
substantive component of the Due Process Clause." Fagan v. City
of Vineland, 22 F.3d at 1306 n. 6. The conduct in question "must
do more than `offend some fastidious squeamishness or private
sentimentalism. . . .'" Johnson v.
Glick, 481 F.2d at 1028 n. 6. "[T]he constitutional concept of
conscience-shocking duplicates no traditional category of
common-law fault. . . ." County of Sacramento v. Lewis, 118
S.Ct. at 1717. The pertinent inquiry is "`whether the force
applied caused injuries so severe, was so disproportionate to the
need presented, and was so inspired by malice or sadism rather
than a merely careless or unwise excess of zeal that it amounted
to a brutal and inhumane abuse of official power literally
shocking to the conscience.'" Jones v. Witinski, 931 F. Supp. at
369, quoting Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir.
In this case, Callahan's punching of Kurilla in the chest
caused a bruise and some red marks. While Kurilla sought medical
care, there is no evidence that medical attention was reasonably
necessary. Kurilla's injuries did not even warrant x-ray
examination or prescription of any medication. Thus, Kurilla's
injuries could hardly be described as "severe".*fn7
Callahan's striking of a blow to Kurilla's chest is akin to the
slap across the student's face considered in Lillard v. Shelby
County Board of Education, supra. In that case, the court held:
[I]t is simply inconceivable that a single slap
could shock the conscience. We do not quarrel with
the suggestion that [the teacher's] actions were
careless and unwise; but they fall short of `brutal,'
or `inhumane,' or any of the other adjectives
employed to describe an act so vicious as to
constitute a violation of substantive due process. In
contrast to Webb the blow inflicted here was
neither severe in force nor administered repeatedly.
Moreover, the slap did not result in any physical
injury to Lillard. While we do not mean to suggest
that school systems should tolerate a teacher who
slaps a student in anger, neither do we conclude that
one slap, even if made for no legitimate purpose,
rises to the level of a constitutional violation.
While [the teacher] should reasonably expect to face
serious consequences for his treatment of Lillard,
those consequences should not be found in a federal
court through the mechanism of a section 1983
76 F.3d at 726 (emphasis added).