     Case: 13-60608      Document: 00512572390         Page: 1    Date Filed: 03/25/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                                 Fifth Circuit

                                                                                FILED
                                                                            March 25, 2014
                                      No. 13-60608
                                                                             Lyle W. Cayce
                                                                                  Clerk
TREY CLAYTON, a minor, by and through his natural mother Dana
Hamilton,

                                                 Plaintiff - Appellant
v.

TATE COUNTY SCHOOL DISTRICT; JAMES MALONE, in his official
capacity as Conservator of Tate County Schools and in his individual
capacity; JEROME MARTIN, in his official capacity as Assistant Principal
and in his individual capacity,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:11-CV-181


Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. ∗
PER CURIAM:**
       After being corporally punished by Jerome Martin (“Martin”)—an
assistant principal at Independence High School and one of the defendants in
this case—Trey Clayton (“Clayton”), through his mother, brought suit against



       ∗
         District Judge of the Eastern District of Louisiana, sitting by designation.
       **Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-60608
the school district, the conservator of the school district, and Martin, asserting,
as relevant here, violations of Clayton’s Eighth Amendment, procedural due
process, substantive due process, and equal protection rights. The defendants
moved to dismiss for failure to state a claim, which the district court ultimately
granted. Additionally, Clayton moved to recuse the judge based on his conduct
in the present litigation and in two other cases over which the judge presided
and in which Clayton’s counsel represented the plaintiffs in those cases. The
district court denied the motion. For the reasons that follow, we AFFIRM.
                                BACKGROUND
                                        I.
      The following facts are drawn from Clayton’s complaint. During the
2010–2011 academic year, Clayton was an eighth-grade student at
Independence High School, part of the Tate County School District. On March
10, 2011, Clayton arrived at his second-period English class and discovered
that another student was occupying Clayton’s assigned seat. Because Clayton
was not in his assigned seat, his teacher sent him to the library. Martin noticed
Clayton sitting in the library and approached him, stating that his bad
behavior was going to stop. Martin appeared angry and agitated.
      Martin told Clayton to follow Martin to his office. Martin, with another
of the school’s assistant principals as a witness, then struck Clayton three
times on the buttocks with a paddle and “with excessive and great force.” The
paddling left visible bruising and welts on Clayton’s buttocks, which were
visible for days thereafter. Additionally, seconds after being paddled, Clayton
fainted and fell, face first, onto the concrete floor in the hallway immediately
outside Martin’s office.     When Clayton regained consciousness, he was
bleeding, five of his teeth were shattered, and, it was later determined, his jaw
was broken.


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                                 No. 13-60608
                                      II.
      Clayton, through his mother, brought suit against the school district,
Tate County School District Conservator James Malone (“Malone”), and
Martin, the assistant principal, asserting, inter alia, violations of his Eighth
and Fourteenth Amendment rights. The defendants moved to dismiss for
failure to state a claim. Initially, the district court denied the motion but
directed Clayton to either amend his complaint or face sanctions for advancing
what the district court suggested were meritless claims. Clayton moved to
reconsider and further moved to recuse the judge.           The district court
reconsidered the order directing Clayton to file an amended complaint, denied
the motion to recuse, and granted the defendants’ motion to dismiss. Clayton
timely appealed.
                         STANDARD OF REVIEW
      “This court reviews a district court’s grant of a motion to dismiss de
novo.” Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). “We accept all
well-pleaded facts as true and view those facts in the light most favorable to
the plaintiff.” Id. “The facts taken as true must, however, ‘state a claim that
is plausible on its face.’” Id. at 637-38 (quoting Amacker v. Renaissance Asset
Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 638 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal
quotation marks omitted). “We review the denial of a recusal motion for abuse
of discretion.” Garcia v. City of Laredo, 702 F.3d 788, 793-94 (5th Cir. 2012).
                                DISCUSSION
                                       I.
      In Ingraham v. Wright, the Supreme Court rejected an Eighth
Amendment challenge to corporal punishment in schools, concluding that the
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Amendment is inapplicable in that context. 430 U.S. 651, 683 (1977). Before
beginning its analysis, however, the Court said that “[i]n addressing the scope
of the Eighth Amendment’s prohibition on cruel and unusual punishment th[e]
Court has found it usual to refer to . . . the ‘attitude[s] which our society has
traditionally taken.’” Id. at 659 (quoting Powell v. Texas, 392 U.S. 514, 535
(1968) (plurality opinion)). It was in this context that the Supreme Court
stated:
      Despite the general abandonment of corporal punishment as a
      means of punishing criminal offenders, the practice continues to
      play a role in the public education of school children in most parts
      of the country. Professional and public opinion is sharply divided
      on the practice, and has been for more than a century. Yet we can
      discern no trend toward its elimination.
Id. at 660-61 (emphasis added) (footnotes omitted). Clayton describes this last
sentence as an “escape hatch” that lower courts may utilize to revisit binding
Supreme Court precedent in the event that society’s attitudes toward corporal
punishment change. We disagree.
      First, such a reading of Ingraham ignores the Court’s text-, history-,
precedent-, and policy-based reasons for concluding that the Eighth
Amendment does not apply to corporal punishment in schools. See id. at 664-
70. Second, the Ingraham Court implicitly rejected Clayton’s reading when it
explained, in a subsequent footnote, that changing social norms may affect the
Court’s determination that a particular form of punishment is “cruel and
unusual” but do not affect whether the Eighth Amendment is applicable in the
first instance. See id. at 668 n.36 (“Our Eighth Amendment decisions have
referred to ‘evolving standards of decency’ only in determining whether
criminal punishments are ‘cruel and unusual’ under the Amendment.”)
(citation omitted). Third, to the extent that Ingraham left open an escape
hatch, it is available for the Supreme Court, and not this court, to use. The

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district court therefore correctly dismissed Clayton’s Eighth Amendment
claims as foreclosed by Ingraham.
                                      II.
      “To state a Fourteenth Amendment [procedural] due process claim under
§ 1983, ‘a plaintiff must first identify a protected life, liberty or property
interest and then prove that governmental action resulted in a deprivation of
that interest.’” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting
Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001)). In Ingraham, the
Supreme Court concluded that “corporal punishment in public schools
implicates a constitutionally protected liberty interest,” namely “freedom from
bodily restraint and punishment,” 430 U.S. at 672-74, which is necessarily
deprived when a school official corporally punishes a student.
      “In procedural due process claims,” however, “‘what is unconstitutional
is the deprivation of such an interest without due process of law.’” Morris v.
Livingston, 739 F.3d 740, 750 (5th Cir. 2014) (quoting Zinermon v. Burch, 494
U.S. 113, 125 (1990)). In Ingraham, the Court concluded that there is no
procedural due process violation when a corporally punished student is not
given the opportunity to be heard pre-deprivation.        See 430 U.S. at 680.
Instead, the Court determined that the availability, post-deprivation, of state-
law remedies satisfied due process. See id. at 675-82. Specifically, the Court
noted that under Florida law—which was at issue in Ingraham—school
officials who administer corporal punishment later deemed to be excessive may
be held civilly or even criminally liable. Id. at 676-77. The same is true with
respect to Mississippi law. See MISS. CODE ANN. §§ 11-46-9(1)(x), 37-11-57(1)-
(2). We therefore conclude that the district court correctly dismissed Clayton’s
procedural due process claim as foreclosed by Ingraham.




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                                               III.
       This court “ha[s] held consistently that, as long as the state provides an
adequate remedy, a public school student cannot state a claim for denial of
substantive due process through excessive corporal punishment, whether it be
against the school system, administrators, or the employee who is alleged to
have inflicted the damage.” Moore v. Willis Indep. Sch. Dist., 233 F.3d 871,
874 (5th Cir. 2000). Furthermore, this court has specifically held that post-
deprivation state-law remedies available in Mississippi provide an adequate
remedy, barring a student subject to corporal punishment from asserting a
substantive due process claim. See Scott v. Smith, 214 F.3d 1349, 1349 (5th
Cir. 2000) (unpublished) (per curiam); see also MISS. CODE. ANN. §§ 11-46-
9(1)(x), 37-11-57(1)-(2); M.C. ex rel. Thurman v. Dorsey, 909 F. Supp. 2d 568,
571-75 (S.D. Miss. 2012); Bell v. W. Line Sch. Dist., Civil Action No. 4:07CV004-
P-B, 2007 WL 2302143, at *3 (N.D. Miss. Aug. 7, 2007). We therefore conclude
that the district court correctly dismissed Clayton’s substantive due process
claim as foreclosed by binding circuit precedent. 1
                                               IV.
        “To maintain an equal protection claim, a plaintiff typically alleges that
he ‘received treatment different from that received by similarly situated



       1 We acknowledge that the Supreme Court has said that “[a] plaintiff . . . may invoke
§ 1983,” with respect to a substantive due process claim, “regardless of any state-tort remedy
that might be available to compensate him for the deprivation of these rights.” Zinermon,
494 U.S. at 125. Moreover, “the majority of the circuits have held that students affected by
corporal punishment may raise [substantive due process] claims,” with most circuits using
the “shocks the conscience” test. Nicole Mortorano, Note, Protecting Children’s Rights Inside
of the Schoolhouse Gates: Ending Corporal Punishment in Schools, 102 GEO. L.J. 481, 489-
90 (2014); see also id. at 489-90 nn.54-64 (collecting cases). Nevertheless, “[i]t is a well-settled
Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’s
decision, absent an intervening change in the law, such as by a statutory amendment, or the
Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375,
378 (5th Cir. 2008). We are therefore bound to apply this circuit’s precedent.

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individuals and that the unequal treatment stemmed from a discriminatory
intent.’” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 212 (5th Cir. 2009) (quoting
Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001)). “[D]isparate impact
alone” is not enough; rather, “a party who wishes to make out an Equal
Protection claim must prove ‘the existence of purposeful discrimination’
motivating the state action which caused the complained-of injury.” Johnson
v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997). Clayton alleges that the school
district administers its corporal-punishment policy in a gender-biased manner
because male students are disproportionately punished.             We conclude,
however, that Clayton has failed to plausibly allege how the putatively
disparate treatment stemmed from discriminatory intent.
      In his complaint, Clayton alleges that the purported disparate impact
“stems from an institutionalized bias[] that male students misbehave more
frequently than female students.”       In support of his argument, Clayton
attached to his complaint a New York Times article in which one of the
individual defendants, Malone, refused to comment on the Clayton litigation
“but [reportedly] said boys typically got in more trouble than girls.” See Dan
Frosch, Schools Under Pressure To Spare the Rod Forever, N.Y. TIMES, Mar.
29, 2011, http://www.nytimes.com/2011/03/28/education/30paddle.html?_r=0.
Assuming arguendo that this statement is sufficient to plausibly allege that
Malone believes boys should be subject to corporal punishment more than girls
because boys act out more—rather than that, as an empirical matter, boys get
into trouble more often than girls do—that one school official believes this does
not plausibly demonstrate that other school officials—much less Martin, who
paddled Clayton—believe the same. In other words, given the discretionary
nature of the school district’s corporal-punishment policy, there is no allegation
that Clayton or any other male student was subject to corporal punishment
because of a biased belief that troublesome boys should be punished more and
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therefore that school officials use gender as an invidious criterion for
determining who should be paddled. Consequently Clayton has failed to state
a claim for a violation of the Equal Protection Clause, and the district court
correctly dismissed this claim. 2
                                              V.
       “Any . . . judge . . . of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” 28
U.S.C. § 455(a). “Courts have interpreted this statute to require recusal if a
reasonable person, knowing all of the facts, would harbor doubts concerning
the judge’s impartiality.” Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004)
(citing Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988)).
       Clayton asserts that Chief Judge Mills abused his discretion by failing
to recuse himself based on his conduct in three cases in which Clayton’s
attorney represented the plaintiff and over which the judge presided: (1)
Thacker v. Prentiss County School District, No. 1:09-cv-46 (N.D. Miss. 2010);
(2) Blevins v. East Tallahatchie School District, No. 2:09-cv-151 (N.D. Miss.



       2 On appeal, Clayton argued that discriminatory purpose may also be gleaned from
the deposition of Tate County School District Superintendent Gay Walker (“Walker”), which
was taken in a separate suit against the school district and which also arose out of corporal
punishment at Independence High School. “[I]n deciding whether to grant a motion to
dismiss,” however, “a district court may not ‘go outside the complaint.’” Gines v. D.R. Horton,
Inc., 699 F.3d 812, 820 (5th Cir. 2012) (quoting Scanlan v. Tex. A&M Univ., 343 F.3d 533,
536 (5th Cir. 2003)). “There is one recognized exception to that rule: a district court may
consider documents attached to the motion to dismiss if they are referred to in the plaintiff’s
complaint and are central to the plaintiff’s claim.” Id. (citing Scanlan, 343 F.3d at 536). The
deposition testimony here was not “referred to in [Clayton’s] complaint” and may therefore
not be considered. See id.

       Regardless, reliance on Walker’s testimony—in which the superintendent said that
“boys are going to be more unruly. . . . Probably [because of] testosterone”—suffers from the
same fatal flaw: it is not plausible to say that any other school official—much less Martin—
administers corporal punishment and is motivated to do so based on Walker’s belief, as
suggested by Clayton, that boys should be subject to corporal punishment because of their
testosterone levels.

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2009); and (3) Clayton v. Tate County School District, No. 2:11-cv-181 (N.D.
Miss. 2013), the present litigation. On review of the circumstances and the
challenged conduct in each case, we conclude that a reasonable person,
knowing all of the facts, would not harbor concerns about the judge’s
impartiality. Sensley, 385 F.3d at 599. Accordingly, the judge did not abuse
his discretion in denying Clayton’s motion to recuse.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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