                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 15a0282p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


 MELISSA HEARRING, Individually and as natural ┐
 mother and next friend of B.H., a minor child,        │
                                   Plaintiff-Appellee, │
                                                       │        Nos. 14-6039/6315
                                                       │
        v.                                              >
                                                       │
                                                       │
 KAREN SLIWOWSKI, Individually,                        │
                                           Defendant, │
                                                       │
                                                       │
 METROPOLITAN GOVERNMENT OF NASHVILLE AND │
 DAVIDSON COUNTY,                                      │
                                Defendant-Appellant. │
                                                       ┘
                         Appeal from the United States District Court
                       for the Middle District of Tennessee at Nashville.
              No. 3:10-cv-00746—William J. Haynes, Jr., Chief District Judge.
                                Decided and Filed: November 20, 2015

            Before: COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.*
                                     _________________

                                                COUNSEL

ON BRIEF: Allison L. Bussell, James E. Robinson, Keli J. Oliver, DEPARTMENT OF LAW
OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
Nashville, Tennessee, for Appellant. Phillip L. Davidson, Brentwood, Tennessee, for Appellee.




        *
           The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan,
sitting by designation.




                                                      1
Nos. 14-6039/6315                    Hearring v. Sliwowski, et al.               Page 2

                                        _________________

                                             OPINION
                                        _________________

       SUTTON, Circuit Judge. This dispute began in 2009 when a first-grader in the Nashville
public schools complained to a teacher that her genitals hurt. The teacher sent the child to a
school nurse who visually inspected the girl. Perhaps understandably, that did not make the
girl’s mother happy, particularly since the nurse did not seek her consent before the examination.
Less understandably, the examination led to a half-dozen years of litigation.

       The mother filed a money-damages action against the nurse and the school district for
conducting a search in violation of her child’s Fourth and Fourteenth Amendment rights. She
sought $1.75 million. The first stage of this dispute ended when our court granted qualified
immunity to the nurse on the ground that existing law did not clearly establish that a medical
examination of a child in response to complaints of pain violated the Fourth Amendment’s
prohibition on unreasonable searches and seizures. 712 F.3d 275 (6th Cir. 2013). The second
stage of this dispute seemed to end when (1) a jury rejected the mother’s claim against the school
district on the ground that the examination did not violate the child’s Fourth and Fourteenth
Amendment rights, and (2) the district court rejected the mother’s request for a new trial. The
court, however, did not enter judgment for the school district. It instead issued an injunction that
required the school system to train its nurses more effectively to prevent incidents of this sort
from happening again. This impromptu injunction was not an everyday exercise of judicial
power, and it is one we must reverse for three reasons: (1) the mother did not seek such an
injunction; (2) the undisturbed (and now unappealed) jury verdict that no constitutional violation
occurred eliminated the factual predicate for such an injunction; and (3) the mother (and
daughter) lacked standing to obtain such an injunction anyway, see City of Los Angeles v. Lyons,
461 U.S. 95 (1983). For these reasons and those elaborated below, we reverse and direct the
district court to enter judgment in favor of the school district.
Nos. 14-6039/6315                   Hearring v. Sliwowski, et al.              Page 3

                                                 I.

        In October 2009, B.H., a first-grade student in the Metropolitan Nashville Public Schools,
complained of pain in her genitals. A school secretary called her mother, Melissa Hearring, who
responded that B.H. often suffered from bladder infections. No physical examination of B.H.
occurred at that point. Two days later, B.H. made a similar complaint. This time, the secretary
asked the school nurse, Karen Sliwowski, to see B.H. Sliwowski and the secretary took B.H. to
a faculty restroom where Sliwowski asked B.H. to remove some of her clothes. Sliwowski
visually checked B.H.’s genitals for redness, including by asking B.H. to “open her labia.”
R. 204 at 46. The examination lasted a minute and B.H.’s genitals were exposed for “[s]econds.”
Id. at 13.

        The aftermath lasted six years. Hearring filed this § 1983 money-damages action on
B.H.’s behalf.     She alleged that Sliwowski’s examination violated B.H.’s Fourth (and
Fourteenth) Amendment right to be free from unreasonable searches. She also alleged that the
Metropolitan Government of Nashville and Davidson County, Sliwowski’s then-employer and
for our purposes the “school district,” violated B.H.’s Fourth Amendment rights because it did
not have a policy in place concerning this type of examination and failed to train Sliwowski
adequately.

        Sliwowski filed a motion for summary judgment on qualified immunity grounds. The
district court denied the motion on the ground that “B.H.’s Fourth Amendment right to be free
from such a[] highly invasive search was clearly established at the time of Sliwowski’s search.”
Hearring v. Sliwowski, 872 F. Supp. 2d 647, 673 (M.D. Tenn. 2012). A panel of this court
reversed, holding that qualified immunity protected Sliwowski from the Fourth Amendment
claim. Hearring v. Sliwowski, 712 F.3d 275 (6th Cir. 2013). On remand, Hearring added a
Fourteenth Amendment claim against the school district, alleging that its failure to train made it
liable for a violation of B.H.’s substantive due process rights because the exam was “an invasion
of [B.H.’s] privacy.” R. 88 at 5.

        The money-damages claims against the school district—for an unconstitutional search
and unconstitutional invasion of privacy—proceeded to trial. To prevail, Hearring had to show
that (1) Sliwowski violated at least one of these constitutional rights, (2) the school district
Nos. 14-6039/6315                     Hearring v. Sliwowski, et al.                Page 4

showed “deliberate indifference” to those rights through its failure to train employees properly in
this area, and (3) the failure caused the constitutional violation. See, e.g., Connick v. Thompson,
131 S. Ct. 1350, 1357–58 & n.3 (2011); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95
(1978).     The jury balked at the first step.     It found that Sliwowski did not violate either
constitutional right. Hearring moved for a new trial, and the district court denied the motion.
The court, however, did not leave it at that. It granted an unrequested injunction, one that
“require[d] training of the relevant Metro school employees” on constitutional limits “to ensure
safeguards for school children’s privacy.” R. 186 at 14–15. Two days after this decision,
Hearring moved to amend her complaint to add a request for an injunction consistent with the
one the district court ordered. Another two days later, the court granted the motion through a
handwritten note on the first page of the motion, saying: “This motion is granted, but Plaintiff’s
complaint sought whatever relief the Court deemed just, fit and proper.” R. 190 at 1. The school
district appealed the injunction. Hearring did not appeal the district court’s denial of a motion
for a new trial.

                                                   II.

          The district court erred in imposing the injunction.

          First, Hearring never sought an injunction and indeed in the pre-trial order expressly
sought only money damages. Her original and amended complaints, all three of them, say
nothing about an injunction. They mention only her requests for money damages. The joint pre-
trial order filed by the parties and issued by the district court made this request explicit. That
order “supplant[ed] the pleadings” and gave a “Succinct Statement of the Relief Sought”: “The
Plaintiff is seeking One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) in
compensatory damages, attorney fees, and costs.” R. 168 at 1, 7. The parties, no surprise, never
offered any evidence or argument about why such an injunction should be granted or for that
matter denied. Ours is an adversarial system. Courts must give both sides of the case an
opportunity to join a debate about any appropriate relief, requested or not, in a given matter.
Nothing of the sort happened here—even after four years of litigation.

          That the plaintiff’s complaints sought “such other and further relief as the Court deems fit
and proper” does not justify the order. R. 1 at 4; R. 10 at 6; R. 88 at 7. Hearring agreed that the
Nos. 14-6039/6315                    Hearring v. Sliwowski, et al.                Page 5

pre-trial order “supplant[ed]” her earlier pleadings that included this language. R. 168 at 1.
Even had that not been the case, one would still expect to see a request for such relief before a
court entered it.     That the district court later granted Hearring’s motion to amend her
complaint—after the jury rejected the pleaded claims and after the court entered the spur-of-the-
moment injunction—does not make up for the error. The court had no authority to grant an
amendment to a by-then superseded complaint. The point at any rate is to give the parties, even
the ostensibly benefitted party, an opportunity to protest or promote the injunction before the
court enters it. That did not happen. If we require courts to give “notice to the adverse party”
before issuing a preliminary injunction, it follows that we should do (at least) the same before
issuing a permanent injunction. Fed. R. Civ. P. 65(a)(1); see also Granny Goose Foods, Inc. v.
Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 432 n.7, 439 (1974). An
unprompted and improvised permanent injunction cannot be justified by a prompted and
(essentially) scripted request for an injunction after the fact.

        Second, the jury rejected the necessary factual predicate for such an injunction. It found
that no constitutional violation occurred. Judges have authority to enter injunctions against a
party—to change the party’s behavior through the power of the federal courts—when they have
done something wrong, and even then that will not always suffice by itself. See Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 32 (2008).            But when “there was no constitutional
violation[,] . . . there is no ongoing unconstitutional conduct to enjoin.” Taylor v. Mich. Dep’t of
Nat. Res., 502 F.3d 452, 458 (6th Cir. 2007). Any authority the district court had to require the
school district to create this training program stemmed only from a finding that the school
district had violated the constitutional rights of its students. Consider the language of § 1983, the
sole source of authority for this cause of action. It requires a constitutional (or statutory)
“deprivation” before the court may hear “an action at law, suit in equity, or other proper
proceeding for redress.” 42 U.S.C. § 1983. In the absence of any such finding, indeed in the
face of a contrary finding, the court had no power to issue this injunction.

        Third, even if we could overlook these two errors, there was one more still. Hearring
(and her daughter) lacked standing to seek such an injunction. The federal courts are not free-
range problem solvers. The Constitution empowers us to hear “Cases” or “Controversies,” and
Nos. 14-6039/6315                  Hearring v. Sliwowski, et al.                 Page 6

that is it. U.S. Const. art. III, § 2. The Supreme Court has repeatedly said that the standing
requirement “gives meaning to these constitutional limits by identifying those disputes which are
appropriately resolved through the judicial process.” Susan B. Anthony List v. Driehaus, 134 S.
Ct. 2334, 2341 (2014) (quotation omitted). Plaintiffs bear the burden of establishing standing
and must do so with respect to each type of relief they seek (or receive unrequested). Summers v.
Earth Island Inst., 555 U.S. 488, 493 (2009); Bowman v. Corr. Corp. of Am., 350 F.3d 537, 550
(6th Cir. 2003). To establish standing for a forward-looking injunction, a party must show a
“threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual
and imminent, not conjectural or hypothetical.” Summers, 555 U.S. at 493.

        Hearring cannot establish an “actual and imminent” threat, and City of Los Angeles v.
Lyons, 461 U.S. 95 (1983), shows why. Los Angeles police applied a chokehold to a plaintiff
who later sought an injunction against the department’s chokehold policy. Id. at 97–98. The
Court held the plaintiff lacked standing for that relief because he had not shown that he “faced a
real and immediate threat of again being illegally choked,” even if there was a possibility that the
Los Angeles police might use a similar chokehold on someone else. Id. at 110. Hearring faces a
comparable problem. All of the evidence at trial showed that exams like the one Sliwowski
performed on B.H. are vanishingly rare. The only person we know of who has ever performed
one, as it happens, does not have the job anymore. Sliwowski left the job not long after this
incident. The risk that B.H. would be subject to another such search is no more “actual and
imminent” than the Chicago Cubs (or, we fear, the Cleveland Indians) winning the World Series.
Hearring’s claim, like the claim in Lyons, rests on mere “speculation,” and that does not suffice.
Id. at 108.

        The district court as it turns out did not justify the injunction on the ground that B.H.
would be injured anew; the court did not justify the injunction with reference to B.H. at all. It
justified the relief as “necessary” to “ensure that . . . children’s Fourth Amendment rights are not
subject to the discretion of the school official in the field.” R. 186 at 14–15. We have no
problem with the sentiment behind the order; it’s just that the court lacked authority to impose it.
If advisory opinions are problematic, orders beyond the scope of Article III are worse.
Such orders are not just “ghosts that slay,” Felix Frankfurter, A Note on Advisory Opinions,
Nos. 14-6039/6315                    Hearring v. Sliwowski, et al.                  Page 7

37 Harv. L. Rev. 1002, 1008 (1924); they are orders that exercise power over real people and
real institutions in the here and now with no basis for doing so. Cf. Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 106–07 (1998).           Because Hearring lacks standing to seek the
injunction, it cannot stand.

                                                  III.

         The school district also appeals the district court’s decision to set aside its award of costs.
Soon after the jury returned its verdict, the school district asked the court to order Hearring to
pay about $3,400 in court-reporter fees. Because the district was “the prevailing party” and
Hearring did not object, the court taxed these costs. Fed. R. Civ. P. 54(d)(1); M.D. Tenn. R.
54.01(a); see also 28 U.S.C. § 1920. After the district court entered the injunction, Hearring
moved to set aside the award. The injunction, as she saw it, made her a “prevailing party” no
longer required to pay the school district’s costs. The district court agreed and set aside the
award. Because we reverse the injunction, Hearring no longer is a “prevailing party.” See
Balsley v. LFP, Inc., 691 F.3d 747, 771 (6th Cir. 2012). The school district is entitled to these
costs.

         For these reasons, we vacate the injunction, reverse the order setting aside the cost award,
and remand with instructions to reinstate that award and to reenter judgment on the jury verdict
in favor of the defendant.
