               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0357n.06

                                         No. 16-6629

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


ALAN JAMES HOWARD, SR. and                     )                                  FILED
VIRGINIA MARIE HOWARD, individually            )                            Jun 21, 2017
and as next friends of W.H., a minor child;    )                        DEBORAH S. HUNT, Clerk
ROBERT ROSASCO and KIMBERLY                    )
ROSASCO, individually and as next friends of   )
L.R., a minor child,                           )
                                               )          ON APPEAL FROM THE
        Plaintiffs-Appellees,                  )          UNITED STATES DISTRICT
                                               )          COURT FOR THE EASTERN
v.                                             )          DISTRICT OF TENNESSEE
                                               )
KNOX COUNTY, TENNESSEE et al.,                 )
                                               )                  OPINION
        Defendants,                            )
                                               )
and                                            )
                                               )
TIMOTHY WIEGENSTEIN, individually,             )
                                               )
        Defendant-Appellant.                   )
                                               )


Before: BOGGS, MOORE, and McKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. From 2011 to 2014, Defendant Rebecca

Shoemaker, a teacher’s assistant at Halls Middle School (“Halls”) in Knox County, Tennessee,

physically, verbally, and emotionally abused special-needs students, including minor Plaintiffs

W.H. and L.R. Despite numerous complaints from parents and students that Shoemaker had

committed specific acts of abuse, Defendant Timothy Wiegenstein, the principal of Halls, failed

to investigate or take any action to stop Shoemaker’s abuse. Instead, with knowledge of the risk
No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


that Shoemaker posed to special-needs children, Wiegenstein heightened the risk by placing her

in a special-needs classroom as a teacher’s assistant.       In that role, Shoemaker committed

numerous acts of abuse against the minor Plaintiffs, for which she was later indicted. Plaintiffs

brought suit under 42 U.S.C. § 1983 against Knox County, the Knox County Board of Education

(“KCBOE”), Wiegenstein, and Shoemaker, alleging violations of their rights under the

Fourteenth Amendment. Wiegenstein filed a motion to dismiss claiming he was entitled to

qualified immunity, which the district court denied. Wiegenstein now argues on appeal that

Plaintiffs have failed to allege sufficient facts that demonstrate that he knew about the ongoing

abuse and thus cannot establish that he acted with deliberate indifference.

       For the following reasons, we AFFIRM the district court’s order denying Wiegenstein’s

motion to dismiss Plaintiffs’ 42 U.S.C. § 1983 claim on the basis of qualified immunity.

                                      I. BACKGROUND

       Shoemaker began working at Halls during the 2011 to 2012 school year. During her first

year, Shoemaker was assigned to be a direct assistant to L.R., which meant that she was

“responsible for every need of L.R. while at Halls Middle School.” R. 44 (Am. Compl. at ¶ 20–

21) (Page ID #398). According to Plaintiffs, while Shoemaker was serving as L.R.’s direct

assistant, her parents, Robert and Kimberly Rosasco, began to notice that L.R. was exhibiting

“new outbursts and aggressive behavior.” Id. at ¶ 21 (Page ID #398). Plaintiffs allege that the

Rosascos made numerous complaints to the KCBOE, the administration, and the school’s

principal, Wiegenstein, and demanded that Shoemaker be replaced as L.R.’s direct assistant. Id.

at ¶ 22 (Page ID #398–99). They further allege that, in response to these complaints, Defendants


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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


failed to investigate or remove Shoemaker, and “school officials responded . . . by affirmatively

telling [the Rosascos] that they could ‘get worse.’” Id. The Rosascos later noticed bruising on

L.R.’s knees and discovered that L.R. had been kept in a room alone for hours and was not

permitted for a whole day to use the restroom. Id. at ¶ 23 (Page ID #399–400). After the

Rosascos threatened legal action, Defendants agreed to replace Shoemaker as L.R.’s direct

assistant. Id. According to Plaintiffs, Shoemaker was not investigated or trained after this

reassignment. Id.

       One year later, at the start of the 2013 to 2014 school year, Shoemaker was “promoted”

to a teacher’s assistant position. Id. Shoemaker had worked as a teacher’s assistant once before

at her prior job at Brickey Elementary School (“Brickey”), where she received negative

performance evaluations. Id. at ¶ 19 (Page ID #397). An April 2011 performance evaluation

reprimanded Shoemaker and stated that she “needed improvement” in “maintaining self-control

in frustrating and difficult situations; following directions of supervisors; and, providing a

positive rapport with the children, teachers and parents.” Id. “Shoemaker also received an

‘unsatisfactory’ evaluation regarding her compliance with school and department regulations.”

Id. Brickey, like Halls, is overseen by the KCBOE, and Plaintiffs assert that “these deficient

evaluation scores, as well as the grounds on which they were based, were either (a) already

known by [KCBOE], and/or (b) placed in Defendant Shoemaker’s personnel file” when she

transferred to Halls. Id.

       Despite these negative evaluations, Shoemaker was assigned to be a teacher’s assistant in

Halls’s Comprehensive Developmental Classroom – Alternative Learning (“CDC-A”)


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classroom. Id. at ¶ 23 (Page ID #399). The CDC-A classroom was intended for special-needs

students and was overseen by one special-education teacher and two teacher’s assistants,

including Shoemaker. Id. at ¶ 24 (Page ID #400). Shoemaker, who was assigned to a regular

classroom at Brickey, had never worked as a teacher’s assistant in a special-needs classroom

before. Id. at ¶ 19 (Page ID #397). According to Plaintiffs, Shoemaker was not trained and

lacked the knowledge necessary to handle a class of special-needs students. Id. at ¶ 23 (Page ID

#399–400). Specifically, “Shoemaker did not have a four-year degree, a teacher’s license, or

sufficient relevant experience and training to give her the requisite knowledge, patience, skills

and abilities to appropriately deal with special needs children.” Id. at ¶ 18 (Page ID #396–97).

According to Plaintiffs, this transfer was made despite Defendants’ knowledge of Shoemaker’s

prior misconduct, not only with regard to L.R., but also with regard to her past performance at

Brickey. Id. at ¶ 23 (Page ID #399–400).

       W.H. and L.R. were both placed in the CDC-A classroom with Shoemaker for the 2013

to 2014 school year. Id. at ¶ 24 (Page ID #400). W.H., who was thirteen when the Amended

Complaint was filed, is wheelchair-bound and has severe physical and mental disabilities that

render her unable to speak. Id. at ¶ 14 (Page ID #394). She is classified by KCBOE as being

intellectually disabled. Id. L.R. similarly has physical and mental disabilities. She is classified

by KCBOE as being “intellectually disabled in certain areas of the educational spectrum, yet

gifted in others.” Id. at ¶ 15 (Page ID #394–95). Whereas W.H. was assigned to the CDC-A

classroom full-time, L.R. was assigned there “as both a student for a portion of her learning and




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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


as a peer mentor due to her qualities in the areas of which she was classified as gifted.” Id. at

¶ 14–15 (Page ID #394–95). L.R. also attended some classes in regular classroom settings. Id.

       Near the end of the 2013 to 2014 school year, the special-education teacher assigned to

CDC-A, referred to by both parties as the “Teacher of the Year,” announced her intent to resign

at the end of the school year. Id. at ¶ 25 (Page ID #400–01). According to Plaintiffs, the

Teacher of the Year was highly competent and well trained to care for special-needs children.

Id. Prior to her resignation, the Teacher of the Year took part in two separate exit interviews,

one conducted by Wiegenstein and the other by a supervisor in the KCBOE Special Education

Department. Id. at ¶ 26 (Page ID #401–02). According to Plaintiffs, the Teacher of the Year

expressed in both interviews that Halls did not provide adequate support to special-needs

students and the CDC-A classroom. Id. She also expressed her “strong opinion” that Shoemaker

should be removed immediately from the CDC-A classroom and replaced with “a properly

trained individual.” Id. Plaintiffs allege that “[t]he teacher specifically stated that the school

could not have someone like Rebecca Shoemaker in a CDC-A classroom that treats special needs

children the way she does.” Id. She also asked Wiegenstein to “promise that the children would

not be hurt.” Id. According to Plaintiffs, Wiegenstein reassured her and promised that the

children “would be looked after and protected.” Id. Despite these conversations, Wiegenstein

did not investigate Shoemaker or transfer her out of the CDC-A classroom. Id. During the 2014

to 2015 school year, Shoemaker was kept on as a teacher’s assistant in the same classroom, and

the Teacher of the Year was replaced by a first-year teacher. Id.




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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


       Plaintiffs argue that after the Teacher of the Year resigned, Wiegenstein continued to

receive numerous complaints related to Shoemaker’s physical abuse, but he did not investigate or

report these concerns to the proper authorities. Id. During the 2014 to 2015 school year, several

student-peer mentors assigned to the CDC-A classroom witnessed Shoemaker’s abusive behavior

toward the special-needs students and reported their concerns to school officials, including

Wiegenstein. Id. at ¶ 27 (Page ID #402–03). The parents of some of these student-peer mentors

also reported these claims of abuse. Id. at ¶ 28 (Page ID #403). Plaintiffs argue that Defendants

failed to investigate, report, or respond to any of these allegations.

       On one occasion, Virginia Howard, W.H.’s mother, witnessed Shoemaker “forcefully

grab [W.H.’s] face and shake it while screaming at her.” Id. at ¶ 30 (Page ID #404–05). Mrs.

Howard “immediately informed” Wiegenstein of this incident. Id. The Howards also began to

notice visible changes to W.H.’s behavior shortly after the start of the 2014 to 2015 school year.

Id. Plaintiffs believe that W.H. was mimicking Shoemaker’s abusive and angry behavior. Id.

Plaintiffs argue that Defendants did not take any action in response to complaints from the

Howards about this abuse. Id.

       On September 24, 2014, the Knox County Sheriff’s Department contacted the Howards

to inform them that the police had received a credible complaint regarding Shoemaker’s abuse of

children in the CDC-A classroom, including W.H. Id. at ¶ 32 (Page ID #405–06). The police,

along with the Tennessee Department of Children’s Services, launched an investigation. Id. On

September 30, 2014, “Shoemaker was forced to resign.” Id. Plaintiffs state that Shoemaker was




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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


arrested and indicted for assault and battery and that, although the investigation is “ongoing, . . .

an admission of guilt was obtained.” Id. at ¶ 32, 36 (Page ID #405–06, 408).

        With regard to the specific allegations of abuse against W.H. and L.R., Plaintiffs allege

that:

        Upon information and belief, these acts of physical and verbal abuse directly and
        specifically involving W.H. included, without limitation, the following: physically
        dragging children by their extremities in such a way that the children’s heads
        and/or bodies would strike objects, walls, and/or the ground; violently throwing or
        pushing children into corners and/or walls; throwing or pushing helpless children
        into chairs and/or other objects; physically grabbing the children’s fingers, wrists,
        and joints and threatening to bend or twist them with the intent of causing fear
        and anxiety; actually squeezing and bending the children’s fingers, wrists, and
        joints so as to cause pain, break bones, and elicit screams of pain from the
        children; violently grabbing a child’s hair and using it to jerk and shake the
        child’s head with the intent to inflict serious abusive pain; violently, physically,
        and in a painfully forceful manner, grabbing a child’s chin and shaking the child’s
        head while screaming at the child; physically standing on a child’s feet and toes
        and then stomping on them; bending a child’s foot, feet, and/or ankles in a
        deliberate and violent manner to inflict extreme pain and elicit screams;
        physically slinging a child from a chair to the floor; loudly screaming into a
        child’s ear, demanding that the children strike and hit each other; and physically
        and verbally abusing children in the course of walking to, using, and leaving the
        restroom so as to prevent them from using the restroom properly and to cause
        anxiety and fear about using the restroom.
                Upon information and belief, Defendant Shoemaker’s physical and verbal
        abuse directly and specifically involving L.R. included, without limitation, the
        following: violent banging of L.R.’s head and arms against cinder block walls
        because [Shoemaker] hated to change [L.R.’s] clothes after urination; inhumanely
        placing L.R. in an approximately eight by eight (8 x 8) room with no windows
        (the equivalent of a jail-like cell) for hours to a full day with the inability to
        urinate based upon Defendant Shoemaker’s heartless disgust with having to help
        the immobile L.R. urinate or change her clothing. Further, said inhumane
        physical and psychological abuse from Defendant Shoemaker caused the disabled
        L.R. to incur a significant amount of yeast and kidney infections due to
        Shoemaker’s prohibition of L.R.’s ability to urinate, physical, psychological
        flashbacks, nightmares, uncontrolled seizure-like behavior, increased physical
        eruption of her behavior due to her condition regarding “tone effect” due to


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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


       Defendant Shoemaker’s abusive temper and yelling, and loss of sleep. Defendant
       Shoemaker’s abuse not only caused heinously serious physical harm and
       inhumane humiliation, but also caused anxiety and fear about the consequences of
       not being able to use the restroom. The combined effects from the inhumane
       treatment and abuse, has caused L.R. to be prescribed medication related to these
       abusive sadistic behavior committed by Defendant Shoemaker, and L.R. will need
       to continue taking this medication for her future wellbeing.

Id. at ¶ 33–34 (Page ID #406–07).

       Plaintiffs filed three separate lawsuits in state court, alleging claims under 42 U.S.C.

§ 1983 based on Shoemaker’s abuse. Defendants timely removed two of these cases to the

District Court for the Eastern District of Tennessee. R. 1 (Notice of Removal) (Page ID #1–3).

The cases were consolidated, and an amended consolidated complaint was filed on September 8,

2015. R. 44 (Am. Compl.) (Page ID #391–423). In the amended complaint, Plaintiffs brought

claims against Knox County, the KCBOE, and Wiegenstein, in his individual capacity, as well as

Shoemaker, in her individual capacity, alleging that Defendants had violated the Fourteenth

Amendment rights of the minor Plaintiffs. Id. at ¶ 54 (Page ID #415). Plaintiffs asserted that

Wiegenstein knowingly authorized Shoemaker’s abuse and that even though “Wiegenstein had

direct knowledge of prior abuse allegations made by teachers, parents and students . . . [he] took

no action except to continue Defendant Shoemaker’s employment and promote her to a more

volatile situation involving numerous special needs children, including the minor Plaintiffs.” Id.

at ¶ 56 (Page ID #415–16). Plaintiffs further alleged that Knox County and the KCBOE were

liable for Shoemaker and Wiegenstein’s actions because they had “proper notice and/or

constructive notice of the unjustifiable and intolerable actions and/or omissions.” Id. at ¶ 58




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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


(Page ID #416). Plaintiffs also brought various state-law, negligence-per-se, and intentional-tort

claims against Defendants. Id. at ¶ 62–72 (Page ID #417–21).

       In response, Knox County, the KCBOE, and Wiegenstein each filed motions to dismiss.

R. 50 (Knox Cty. Mot. to Dismiss) (Page ID #562–99); R. 46 (KCBOE Mot. to Dismiss) (Page

ID #440–57); R. 48 (Wiegenstein Mot. to Dismiss) (Page ID #538–60). The KCBOE also filed a

motion to strike assertedly immaterial and impertinent allegations, and Knox County,

Wiegenstein, and Shoemaker jointly filed a motion to strike redundant parties. R. 46 (KCBOE

Mot. to Dismiss) (Page ID #440–57); R. 59 (Defs. Mot. to Strike) (Page ID #729–32). The

district court granted Knox County’s motion to dismiss as to the negligence-per-se, common-

law-negligence, and punitive-damages claims, but denied the motion as to Plaintiffs’ § 1983

claim for municipal liability. R. 70 (Dist. Ct. Order at 2, 38) (Page ID #795, 831). The district

court granted the KCBOE’s motion to dismiss as to the negligence-per-se claim, but denied it as

to all other claims and denied the KCBOE’s motion to strike. Id. at 2, 19–20 (Page ID #795,

812–13). As to Wiegenstein’s motion to dismiss, the district court held that Wiegenstein was not

entitled to qualified immunity and denied his motion to dismiss Plaintiffs’ § 1983 claim. Id. at

48 (Page ID #841). Finally, the district court denied Defendants’ motion to strike redundant

parties. Id. at 49 (Page ID #842). Wiegenstein then filed a timely notice of appeal. The only

issue on appeal is whether Plaintiffs allege sufficient facts to demonstrate that Wiegenstein is not

entitled to qualified immunity.




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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


                                         II. ANALYSIS

A. Standard of Review

       “The district court’s rejection of the state defendants’ qualified immunity defense at the

pleading stage, posing a question of law, is reviewed de novo.” Rondigo, L.L.C. v. Twp. of

Richmond, 641 F.3d 673, 680 (6th Cir. 2011) (citation omitted). We must take as true the non-

conclusory allegations in the complaint, and determine if the complaint contains “sufficient

factual matter” to support a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“A claim is facially plausible when a plaintiff ‘pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Coley v.

Lucas Cty., 799 F.3d 530, 537 (6th Cir. 2015) (quoting Iqbal, 556 U.S. at 678). The allegations

must be more than mere “labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the

allegations “must be enough to raise a right to relief above the speculative level.” Id.

B. Qualified Immunity

       The doctrine of qualified immunity shields government officials from civil liability under

42 U.S.C. § 1983 if “their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Once qualified immunity is raised, the plaintiff bears the burden of showing that the

defendants are not entitled to qualified immunity. Burgess v. Fischer, 735 F.3d 462, 472 (6th

Cir. 2013).   The Supreme Court has “repeatedly . . . stressed the importance of resolving




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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S.

223, 232 (2009) (citation omitted).

       We conduct a two-step analysis to determine whether qualified immunity applies. Coley,

799 F.3d at 537. First, “viewing the facts in the light most favorable to the plaintiff, we

determine whether the allegations give rise to a constitutional violation.” Id. (citation omitted).

Second, we must “assess whether the right was clearly established at the time of the incident.”

Id. (citation omitted). Courts have discretion to decide which of the two steps to address first.

Pearson, 555 U.S. at 236. The parties do not dispute that the right at issue here was clearly

established. See Appellant’s Br. at 19; see also Webb v. McCullough, 828 F.2d 1151, 1158 (6th

Cir. 1987) (“It is well established that persons have a fourteenth amendment liberty interest in

freedom from bodily injury.”). We must therefore assess whether the allegations sufficiently

allege a claim that Wiegenstein caused the constitutional deprivation.

       1. Deliberate Indifference

       Plaintiffs argue that although Wiegenstein did not himself physically abuse the minor

children, he is nonetheless liable as a supervisor for causing minor Plaintiffs W.H. and L.R. to be

deprived of a federal right. Appellee’s Br. at 14; see also Peatross v. City of Memphis, 818 F.3d

233, 241 (6th Cir. 2016) (“[T]o establish personal liability in a § 1983 action, it is enough to

show that the official, acting under color of state law, caused the deprivation of a federal right.”

(citation omitted)). It is well-established that “a mere failure to act will not suffice to establish

supervisory liability,” and that a showing of “active unconstitutional behavior” is required.

Peatross, 818 F.3d at 241 (citation omitted). “However, ‘active’ behavior does not mean ‘active’


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in the sense that the supervisor must have physically put his hands on the injured party or even

physically been present at the time of the constitutional violation.” Id. at 242 (citation omitted).

In order to bring a claim of supervisory liability against a school official, a plaintiff must show

that the defendant’s “failure to take adequate precautions amounted to deliberate indifference to

the constitutional rights of students.” Doe v. Warren Consol. Schs., 93 F. App’x 812, 818–19

(6th Cir. 2004) (citation omitted). This requires, at a minimum, a showing “that a supervisory

official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional

conduct of the offending subordinate.” Doe v. Claiborne Cty., 103 F.3d 495, 511 (6th Cir. 1996)

(citation omitted).

       The issue of deliberate indifference in this context is a question of proportionality.

McCoy v. Bd. of Ed., Columbus City Schs., 515 F. App’x 387, 391 (6th Cir. 2013). The court

should first take into consideration the information available to the supervisor at the time, and

whether the information available to the supervisor “showed a strong likelihood” that the

defendant would engage in similar behavior in the future. Claiborne Cty., 103 F.3d at 513

(citation omitted). The likelihood of future harm may depend upon a showing that the supervisor

“was confronted with a widespread pattern of constitutional violations,” not merely isolated or

“sporadic” incidents. Warren, 93 F. App’x at 821–22. Next, the court must consider whether, in

light of that information, the school official’s response rises to the level of deliberate

indifference. Id. at 821.

       Taking as true the allegations contained in the amended complaint, we conclude that

Plaintiffs have alleged sufficient facts to demonstrate that Wiegenstein had actual knowledge of


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Shoemaker’s abuse.                             Plaintiffs point to numerous examples where parents and students

complained to Wiegenstein about specific incidents of abuse witnessed or otherwise discovered,

not just a general fear of potential abuse. The complaint clearly states that during the 2011 to

2012 school year, the Rosascos made repeated complaints to Wiegenstein “including claims of

verbal and physical abuse . . . by Defendant Shoemaker” after they began to notice aggressive

behavior in their daughter. R. 44 (Am. Compl. at ¶ 22) (Page ID #398). Moreover, the Rosascos

allege that they threatened legal action after they discovered bruising on L.R.’s knees and learned

that, when Shoemaker was assigned as L.R.’s direct assistant, she kept L.R. isolated in a room

alone and did not allow her to use the restroom for an entire day. Id. at ¶ 23 (Page ID #399–

400). These complaints clearly put Wiegenstein on notice that a constitutional deprivation was

taking place as to L.R.

              Wiegenstein was also put on notice of the abuse of W.H. when Mrs. Howard personally

witnessed Shoemaker grab and shake W.H.’s face1 and “immediately informed Defendant


                                                            
              1
         In a letter submitted to this court after oral argument, Wiegenstein argues that our recent
holding in Gohl v. Livonia Public Schools School District, 836 F.3d 672, 678 (6th Cir. 2016),
petition for cert. filed, (U.S. Feb. 16, 2017) (No. 16–1001), establishes that this type of behavior
does not shock the conscience absent a serious injury. We note, first, that the shocks-the-
conscience standard is wholly distinct from the question of whether, in light of the information
Wiegenstein possessed at the time, Shoemaker “‘showed a strong likelihood that he would
attempt to’ [harm] other students, such that the ‘failure to take adequate precautions amounted to
deliberate indifference’ to the constitutional rights of students.” Claiborne Cty., 103 F.3d at 513
(citation omitted). The parties do not dispute that Shoemaker’s individual actions shocked the
conscience. Moreover, contrary to Wiegenstein’s assertion, Gohl did not go so far. There we
held that a public school teacher’s act of grabbing and squeezing a student’s face may not
necessarily shock the conscience if it is established that: 1) there was a pedagogical purpose for
the use of force; 2) the force was proportionate to meet the legitimate objective; 3) the force was
“applied in a good-faith effort to maintain or restore discipline [rather than] maliciously and

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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


Wiegenstein of Defendant Shoemaker’s continued and unjustified mistreatment and abuse of

these children.” Id. at ¶ 30 (Page ID #404–05). Wiegenstein was again put on notice during the

2014 to 2015 school year, when student-peer mentors and their parents allegedly “inform[ed]

school officials, including Defendant Wiegenstein, of . . . problems associated with Defendant

Shoemaker’s mistreatment and/or abuse of the special needs children including, specifically, the

minor Plaintiffs,” which the student-peer mentors personally witnessed while mentoring students

in the CDC-A classroom. Id. at ¶ 27–28 (Page ID #402–03). Plaintiffs have clearly alleged

sufficient facts to demonstrate that Wiegenstein had actual knowledge of specific instances of

Shoemaker’s abuse. Wiegenstein also possessed information that showed it was highly likely

that there was a “widespread pattern of constitutional violations,” Claiborne Cty., 103 F.3d at

513, not merely a few isolated incidents. The Teacher of the Year warned Wiegenstein that

Shoemaker should not be placed in the CDC-A classroom and that the school could not have

someone like her who “treats special needs children the way she does.” R. 44 (Am. Compl. at

¶ 26) (Page ID #401–02). Wiegenstein also had access to Shoemaker’s performance evaluations

from Brickey, which indicated that she had trouble “maintaining self-control in frustrating and

difficult situations” and in complying with school and department regulations. Id. at ¶ 19 (Page

ID #397).                  Taken together, the information available to Wiegenstein demonstrated that

Shoemaker had a pattern of abuse toward special-needs students and that there was a strong


                                                                                                                                                                                                
sadistically;” and 4) there was no serious injury. Gohl, 836 F.3d at 678–79. There is nothing in
the complaint to suggest that the actions here were so justified, whereas there are allegations that
suggest Shoemaker’s behavior was carried out maliciously and for no legitimate purpose and that
Plaintiffs W.H. and L.R. suffered serious and long-term injuries as a result.

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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


likelihood that Shoemaker would continue to harm special-needs students like W.H. and L.R.

See Claiborne Cty., 103 F.3d at 513.

       We must next consider whether, given Wiegenstein’s actual knowledge of Shoemaker’s

abuse, his response rises to the level of deliberate indifference. On the basis of the complaint, it

is clear that his actions, and more often, inaction, constituted deliberate indifference. Although

knowing acquiescence implies more than “sloppy, reckless, or neglectful” execution of duties,

Claiborne Cty., 103 F.3d at 513, “failure to take any disciplinary action despite reports of

repeated [abuse] rises to the level of deliberate indifference,” McCoy, 515 F. App’x at 391; see

also Peatross, 818 F.3d at 243 (holding that plaintiffs raised a claim of deliberate indifference

where the complaint alleged that defendant, despite acknowledging a problem with police

operations, nonetheless failed to investigate allegations of excessive force and attempted to

cover-up incidents by exonerating officers); Davis v. Monroe Cty. Bd. of Ed., 526 U.S. 629, 654

(1999) (holding that a complaint alleging that a school board “made no effort whatsoever either

to investigate or to put an end” to sexual harassment by a classmate “suggests that petitioner may

be able to show . . . deliberate indifference on the part of the Board”). Moreover, a defendant

may be more likely to be considered deliberately indifferent if he took affirmative action that

heightened the risk of harm to the plaintiff. See Warren, 93 F. App’x at 819 (holding that

qualified immunity did not apply where defendant had actual knowledge of a teacher’s sexual-

abuse history but chose to approve his transfer to an elementary school where plaintiff was

abused).




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       The complaint alleges that Wiegenstein made no efforts to investigate, report, train, or

terminate Shoemaker upon receipt of numerous complaints from students, parents, and teachers.

R. 44 (Am. Compl. at ¶¶ 22–23, 26–31) (Page ID #398–405). This alone is sufficient to

establish a claim for deliberate indifference. The complaint also alleges that Wiegenstein,

despite knowledge of Shoemaker’s abuse, took affirmative actions to heighten the risk of future

harm to children. After receiving complaints from the Rosascos of verbal and physical abuse of

their child and of specific discoveries including bruising on L.R.’s knees, Wiegenstein replaced

Shoemaker as L.R.’s direct assistant. Id. at ¶ 23 (Page ID #399–400). However, Wiegenstein

later placed Shoemaker in the CDC-A classroom, where L.R. was placed, along with numerous

other special-needs children. Id. Given his earlier acknowledgement that Shoemaker was ill-

suited to care for L.R. as a direct assistant, Wiegenstein’s decision to place her in L.R.’s

classroom with numerous other special-needs children goes beyond negligence, or even

recklessness. Faced with knowledge of Shoemaker’s history with L.R., Wiegenstein “chose the

path of deliberate indifference to the imminent danger he knew [Shoemaker] posed to students.”

Warren, 93 F. App’x at 820.

       Wiegenstein has failed to identify a single case where we held that a school supervisor

who took no action in response to complaints of a constitutional violation was entitled to

qualified immunity. In Claiborne County, we explicitly held that three supervisor-defendants

carried out their statutory duty to supervise and report acts of misconduct, including by reporting

allegations of sexual abuse to the appropriate child-welfare agency, removing the accused

teacher from student contact during the pendency of the investigation, supervising later contact


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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


with students, and determining that the teacher in question had been “exonerated” of all previous

charges. Claiborne Cty., 103 F.3d at 513. In Doe v. City of Roseville, we found that one of the

supervisors filed a report with the child-welfare agency and believed that the abuse might be

occurring at home, whereas the other supervisor did not become aware of a teacher’s history of

sexual misconduct until after the police launched an investigation. Roseville, 296 F.3d 431, 441

(6th Cir. 2002).                       The response of these officials is clearly distinguishable from that of

Wiegenstein, who took no action despite numerous consistent complaints from students, parents,

and teachers.

              2. Causal Connection

              Wiegenstein also contends that the claims against him should be dismissed because he

believes that there is no causal connection between his failure to train and supervise and

Shoemaker’s criminal activity.2 Appellant’s Br. at 33. This is clearly incorrect. The complaint

states that Wiegenstein was “in a position of supervision and control over teacher’s assistan[ts] at

Halls Middle School, including Defendant Shoemaker.” R. 44 (Am. Compl. at ¶¶ 10) (Page ID

#393). By failing adequately to supervise and, in particular, to investigate allegations of abuse

against Shoemaker and by placing Shoemaker in a situation that heightened the likelihood that

                                                            
              2
         We have not yet determined whether a causal connection must be shown where the
plaintiff can establish active participation. See Roseville, 296 F.3d at 440 (acknowledging,
without adopting, an Eleventh Circuit test that “[s]upervisor liability [under § 1983] occurs either
when the supervisor personally participates in the alleged constitutional violation or when there
is a causal connection,” and noting that this is an “even stronger statement[] with regard to
supervisory liability” as compared with the standard in our circuit (emphasis added) (first two
alterations in original)). The language of § 1983 itself holds liable any person acting under color
of law who “subjects, or causes [a person] to be subjected” to a constitutional violation.
42 U.S.C. § 1983 (emphasis added).

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No. 16-6629, Howard et al. v. Knox County, Tennessee et al.


Shoemaker’s widespread pattern of abuse would continue, Wiegenstein made it possible for

Shoemaker continually to abuse the minor Plaintiffs.

                                     III. CONCLUSION

       Based on the foregoing, we AFFIRM the district court’s order denying Wiegenstein’s

motion to dismiss Plaintiffs’ 42 U.S.C. § 1983 claim on the basis of qualified immunity.




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