                                                                                        FILED
                                                                                Feb 05 2018, 5:43 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Matthew J. Elliott                                         David W. Frank
      Taylor A. Beaty                                            Christopher C. Myers & Associates
      Beckman Lawson, LLP                                        Fort Wayne, Indiana
      Fort Wayne, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Fort Wayne Community Schools                               February 5, 2018
      and Jacalyn Butler,                                        Court of Appeals Case No.
      Appellants-Defendants,                                     02A03-1708-CT-1829
                                                                 Appeal from the Allen Superior
              v.                                                 Court
                                                                 The Honorable David J. Avery,
      Steffanie Haney, for next friend                           Judge.
      and minor daughter, M.H.,                                  Trial Court Cause No.
      Appellee-Plaintiff.                                        02D09-1605-CT-270




      Mathias, Judge.

[1]   Fort Wayne Community Schools and its employee Jacalyn Butler (collectively

      “FWCS”) bring this interlocutory appeal from the Allen Superior Court’s

      partial denial of summary judgment on Steffanie Haney’s (“Haney”) complaint

      alleging battery against her daughter M.H. and a 42 U.S.C. § 1983 violation of

      M.H.’s Fourth Amendment rights.

      Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018                           Page 1 of 14
[2]   We reverse and remand.


                                   Facts and Procedural History
[3]   In the fall of 2015, Jacalyn Butler (“Butler”) was a first-grade teacher at Forest

      Park Elementary School in Fort Wayne, Indiana.1 M.H. was a student in

      Butler’s classroom. On November 12, 2015, the students were taking a spelling

      test. While Butler was monitoring the classroom, she noticed M.H. dropping

      erasers and other items onto the floor. As M.H. leaned down to pick up the

      items, she placed her head under the desk which caused her posterior to rise up.

      On one of these occasions, it is undisputed that Butler walked by and touched

      M.H.’s posterior to induce M.H. to sit back down into her seat.


[4]   The parties disagree on the level of force Butler exerted on M.H. Butler

      maintains that “she patted M.H.’s rear end with the tips of three fingers,

      attempting to re-direct her into her seat.” Appellants’ App. p. 93. M.H. agreed

      with Butler’s account during deposition testimony. Id. at 88–89.2 Steffanie

      Haney (“Haney”), M.H.’s mother, asserts that Butler spanked or smacked

      M.H.’s behind. Id. at 133–34.


[5]   The school corporation investigated the incident, and although it could not

      substantiate the allegation of spanking, Butler was suspended for one day




      1
       Forest Park Elementary is within the Fort Wayne Community School Corporation, and Butler was a school
      corporation employee at the relevant time.
      2
       We also note that M.H. testified during her deposition that Haney told M.H. to testify that Butler hit her,
      and that she would be in trouble with her parents if she testified otherwise. Appellants’ App. pp. 77–78.

      Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018                       Page 2 of 14
      without pay for inappropriate and unprofessional behavior in violation of the

      school corporation’s board policy and code of ethics.3 Id. at 132. Haney filed a

      complaint on May 25, 2016, which brought state law battery tort claims against

      Butler and the school corporation, and federal § 1983 claims against Butler and

      the school corporation alleging a violation of M.H.’s Fourth Amendment

      rights.4


[6]   FWCS filed a motion for summary judgment on March 24, 2017. On July 12,

      2017, the trial court granted the motion in part and denied it in part. The trial

      court denied summary judgment on Haney’s state law tort claim against the

      school corporation and the § 1983 claim against Butler.5 FWCS filed a motion

      to certify the order for interlocutory appeal on August 9 which the trial court

      granted on August 22. We accepted jurisdiction of the appeal under Appellate

      Rule 14(B) on November 1, 2017.




      3
       The applicable board policy states, “The physical striking or touching of a student with the intent to
      produce bodily pain by a school employee or other adult representing the school shall not be permitted as an
      option in disciplining students. Alternative practices shall be utilized.” Appellants’ App. p. 132. And the
      applicable code of ethics section instructs personnel to “[m]ake the well-being of students the fundamental
      value in all decision-making actions.” Id.
      4
       The complaint also originally argued that Indiana Code section 20-33-8-8(b) is unconstitutional; however,
      Haney later dropped this claim.
      5
       The trial court held that Butler was entitled to summary judgment on the state law claim because she was
      acting within the scope of her employment and thus could not be sued individually under Indiana’s Tort
      Claims Act. Ind. Code § 34-13-3-5(b). Appellants’ App. p. 18. The court also found that the school
      corporation was entitled to summary judgment on the § 1983 claim because it did not have a custom, policy,
      or practice of constitutional violations. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

      Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018                      Page 3 of 14
                                      Discussion and Decision
[7]   FWCS contends that the trial court erred in granting, in part, Haney’s motion

      for summary judgment. We review a summary judgment de novo, applying the

      same standard as the trial court and drawing all reasonable inferences in favor

      of the nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In

      conducting our review, we consider only those matters that were designated at

      the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229 (Ind.

      Ct. App. 2011). Summary judgment is appropriate if the designated evidence

      shows 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. Hughley, 15 N.E.3d at 1003;

      Ind. Trial Rule 56(C).


                             I. State Law Battery Claim against FWCS

[8]   FWCS argues that the state law claims against it are barred because Butler’s

      actions were permissible and protected by qualified immunity under Indiana

      Code section 20-33-8-8.


[9]   Section 20-33-8-8 states:


              (a)      Student supervision and the desirable behavior of students
                       in carrying out school purposes is the responsibility of:
                       (1)      a school corporation; and
                       (2)      the students of a school corporation.
              (b)      In all matters relating to the discipline and conduct of
                       students, school corporation personnel:
                       (1)      stand in the relation of parents to the students of the
                                school corporation;


      Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018     Page 4 of 14
                        (2)      have the right to take any disciplinary action
                                 necessary to promote student conduct that conforms
                                 with an orderly and effective educational system,
                                 subject to this chapter; and

                        (3)      have qualified immunity with respect to a
                                 disciplinary action taken to promote student
                                 conduct under subdivision (2) if the action is taken
                                 in good faith and is reasonable.


       A teacher may also “take any action that is reasonably necessary to carry out or

       to prevent an interference with an educational function that the individual

       supervises.” Ind. Code § 20-33-8-9(b). FWCS points to three cases from our

       court to support its argument that Butler’s alleged battery of M.H. is protected

       by section 20-33-8-8(b)(3)’s qualified immunity as a matter of law. We agree.


[10]   In State v. Fettig, 884 N.E.2d 341, 342 (Ind. Ct. App. 2008), a student in a high

       school gym class went over to check on her friend who had appeared to injure

       her ankle. Fettig, the gym teacher, approached the two students and allegedly

       slapped the assisting student on the face with an open hand and told her to go

       play. Fettig was charged with misdemeanor battery and filed a motion to

       dismiss the charge which the trial court granted stating:

               Here we have a classroom disturbance wherein the teacher uses
               some measure of touching to restore order and redirect the focus
               of the class. No weapons; no closed fist[;] no repeated blows; no
               verbal abuse; just an open handed touching to the face of a
               [fifteen-year-old] student which caused her face to sting.


       Id. at 345. The State appealed, arguing in part that because the justification for

       teachers to corporally punish students under Indiana Code section 20-33-8-8(b)
       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018      Page 5 of 14
       is limited by notions of reasonableness, then the issue should have been

       presented to a jury. A panel of this court disagreed explaining, “this is the very

       issue which our appellate courts have removed from the discretion of the jury

       by reversing verdicts finding battery by teachers who have hit students to inflict

       punishment.” Id. Thus, we concluded that the trial court did not abuse its

       discretion when it dismissed the information charging Fettig with battery. Id. at

       346.


[11]   In Barocas v. State, 949 N.E.2d 1256, 1257 (Ind. Ct. App. 2011), Barocas, a

       special education teacher, flicked the tongue of a ten-year-old Down syndrome

       student after twice telling the student to put her tongue back in her mouth. The

       student proceeded to let out a wail and began crying. Barocas was convicted of

       misdemeanor battery during a bench trial. On appeal, a panel of this court

       reversed Barocas’s conviction because the State failed to negate her claim of

       parental privilege under section 20-33-8-8. Id. at 1261. Our court also explained,

       “in addition to the presumption of innocence shared by all criminal defendants,

       we presume teachers do their duty when punishing a student.” Id. at 1258.


[12]   And in Littleton v. State, 954 N.E.2d 1070 (Ind. Ct. App. 2011), a sixth-grade

       student who was diagnosed with autism and other disorders had to be

       physically restrained in a Rifton chair6 after he began striking himself with his




       6
         “A Rifton chair is designed for children with orthopedic disorders . . . . [It] is made of wood, has arms and a
       curved back and seat, and may be used with an orthopedic belt around a child’s waist to prevent the child
       from falling from the chair. The chair may also be used to [confine] a student in a particular location.”
       Littleton v. State, 954 N.E.2d 1070, 1072 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018                         Page 6 of 14
       hands. Littleton, the student’s special education teacher, directed one of her

       aides to restrain the student in the Rifton chair. The student’s legs were

       strapped to the chair, a belt was wrapped around his waist, and the chair was

       tipped back so that its back lay flat on the ground with the student’s legs up in

       the air. Littleton was charged with felony criminal confinement, felony neglect

       of a dependent, and misdemeanor battery. The trial court denied Littleton’s

       motion to dismiss, and she appealed arguing that her acts were entitled to

       qualified immunity under § 20-33-8-8(b).


[13]   We reversed the trial court’s denial of Littleton’s motion to dismiss holding “it

       is apparent to us that Littleton’s conduct comes within the scope of her

       statutory qualified immunity as a teacher managing a classroom[.]” Littleton,

       954 N.E.2d at 1080. The Littleton panel also noted “what is educationally

       appropriate and what is reasonable under the circumstances are not one and the

       same.” Id.


[14]   Here, the trial court acknowledged that section 20-33-8-8(b) provides for

       qualified immunity of a teacher if the discipline is undertaken in good faith and

       is reasonable; but, the court determined that what constitutes “good faith” and

       what form of discipline is “reasonable” is a question of fact, making summary

       judgment improper. Appellants’ App. pp. 17–18. However, our court in Fettig

       addressed this exact argument and found otherwise. 884 N.E.2d at 345. Most

       importantly however, the prior cases interpreting section 20-33-8-8 make it clear




       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018   Page 7 of 14
       that, even if we assume that Butler smacked or spanked M.H., her actions are

       protected by the statute.7


[15]   It is undisputed that the physical contact occurred when the first-grade students

       were taking a test, and it is undisputed that M.H. was dropping items on the

       ground and reaching under her desk to pick them up, causing her posterior to

       rise into the air. Taking action to require that M.H. remain in her seat while the

       class is taking part in an educational activity falls squarely within section 20-33-

       8-8(b)(2)’s grant of a teacher’s right “to take any disciplinary action necessary to

       promote student conduct that conforms with an orderly and effective

       educational system.” Further, Butler’s alleged conduct here is far less egregious

       than the alleged behavior of the teachers in Fettig, Barocas, and Littleton. Indeed,

       these cases show Butler’s actions were taken in good faith and were reasonable,

       as a matter of law.


[16]   Moreover, section 20-33-8-8(b)(1) states that with respect to school matters,

       teachers “stand in relation of parents to the student of the school corporation.”




       7
         Haney’s allegation that M.H. was smacked or spanked is not credible. M.H. testified under oath that Haney
       told her to say that Butler hit her, conduct on Haney’s part that might amount to subornation of perjury.
       Appellants’ App. p. 77. Additionally, M.H. testified that Butler touched M.H.’s behind with three fingers,
       that she was embarrassed, and that she did not cry. Id. at 88–90. We acknowledge that Haney produced a
       handwritten document stating that Butler “spanked [M.H.’s] butt” and “made her cry.” Id. at 133. Typed
       investigation notes also indicate that Butler smacked M.H. on her butt with a hard hit that made her cry. Id.
       at 134. However, the same investigation notes show that another student in the class said that M.H. did not
       cry. Id. Additionally, Haney’s proffered exhibit from the school corporation’s head of human resources notes
       that “the allegation of spanking is unsubstantiated.” Id. at 132. Although FWCS moved to strike these
       exhibits on the basis that each constituted inadmissible hearsay, the trial court declined to rule on the motion.
       Id. at 18. Thus, while we think Haney’s description of the incident is, at best, dubious, and most likely a lie,
       in light of the designated evidence and the sworn deposition testimony, we are aware of the summary
       judgment standard, and we will proceed as if Butler did in fact “spank” or “smack” M.H. on the behind.

       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018                         Page 8 of 14
       Therefore, if Butler were allowed to be held civilly liable for allegedly spanking

       a student at school, then Haney could be held civilly liable for spanking M.H. at

       home, an action she does frequently. Appellants’ App. pp. 71–74, 79–82. As

       FWCS points out, “this would represent a rather dramatic shift in Indiana law.”

       Reply Br. at 16. Our supreme court explained in Indiana State Personnel Board v.

       Jackson, 244 Ind. 321, 192 N.E.2d 740, 743–44 (1963):


                [T]he law of Indiana clearly accords to the public school teacher
                in proper cases the same right over a child in his or her school as
                is possessed by the parent, and this includes the right to
                administer corporal punishment when it is appropriate. The law
                is well settled in this state that the teacher stands in loco parentis
                to the child, and his authority in this respect is no more subject to
                question than is the authority of the parent. The teacher’s
                authority and the kind and quantum of punishment employed to
                meet a given offense is measured by the same rules, standards
                and requirements as fixed and established for parents.


[17]   Thus, viewing the facts most favorable to Haney, we find that Butler’s conduct

       here fell well within the range of permissible conduct by parents, and hence

       teachers, under section 20-33-8-8(b). Because Butler’s conduct comes within the

       scope of her statutory qualified immunity as a teacher managing a classroom,

       FWCS was entitled to summary judgment on the state law battery claim.8




       8
         Haney also argues that the qualified immunity conferred by Indiana Code section 20-33-8-8(b)(3) only
       serves as a defense in a criminal prosecution. Appellee’s Br. at 19–21. We disagree. Nothing in the statute
       itself or the case law interpreting it imposes or has implied such a limitation. And further, qualified immunity
       is traditionally understood to be a civil law concept. See Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015)
       (explaining that qualified immunity exists to shield government officials from civil damages); Cantrell v.
       Morris, 849 N.E.2d 488, 494 (Ind. 2006); Earles v. Perkins, 788 N.E.2d 1260, 1267 (Ind. Ct. App. 2003).

       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018                        Page 9 of 14
                                   II. Section 1983 Claim against Butler

[18]   FWCS also argues that it is entitled to summary judgment on Haney’s § 1983

       claim against it because the alleged constitutional violation of M.H.’s Fourth

       Amendment rights was not clearly established. The Fourth Amendment

       protects “[t]he right of the people to be secure in their persons . . . against

       unreasonable . . . seizures.” It does not create a private right of action. When a

       person believes her Fourth Amendment rights have been violated, the proper

       claim is brought under 42 U.S.C. § 1983 which “creates a species of tort liability

       . . . for the deprivation of any rights, privileges, or immunities secured by the

       Constitution.” Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017) (citation

       and quotation marks omitted). Haney asserts that the contact applied to M.H.

       by Butler “was unreasonable, unnecessary, and inappropriate,” Appellee’s Br.

       at 15, and therefore violated M.H.’s Fourth Amendment right to be free from

       an unreasonable seizure.


[19]   Before reaching the merits of Haney’s § 1983 claim, “the trial court must

       exercise its discretion in a way that protects the substance of the qualified

       immunity defense. It must exercise its discretion so that officials are not subject

       to unnecessary and burdensome discovery or trial proceedings.” Crawford-El v.

       Britton, 523 U.S. 574, 597–98 (1998). “Whether a government official is entitled

       to qualified immunity is a legal question for resolution by the court, not a jury.”




       Therefore, the qualified immunity provision in section 20-33-8-8(b)(3) applies equally to civil cases as it does
       in criminal prosecutions.

       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018                        Page 10 of 14
       Purtell v. Mason, 527 F.3d 615, 621 (7th Cir. 2008). The Supreme Court has held

       that when making a decision on qualified immunity, “the court must determine

       whether, assuming the truth of the plaintiff’s allegations, the official’s conduct

       violated clearly established law.” Crawford-El, 523 U.S. at 598. If the relevant

       facts of a case show that there is no violation of clearly established law, then

       there is no constitutional violation. Pearson v. Callahan, 555 U.S. 223, 236

       (2009).


[20]   This well-established inquiry asks whether in light of the pre-existing law the

       unlawfulness of the alleged inappropriate conduct was apparent. Purtell, 527

       F.3d at 621. And the burden is on the plaintiff to demonstrate the violation of a

       clearly established right. Id. To meet this burden, Haney “may point to closely

       analogous cases demonstrating that the conduct is unlawful or demonstrate that

       the violation is so obvious that a reasonable state actor would know that what

       he is doing violates the Constitution.” Green v. Butler, 420 F.3d 689, 700 (7th

       Cir. 2005).


[21]   Haney cites to four cases when she asserts that Butler had “reasonable notice

       that in November 2015 [M.H.] clearly had the right to be free from

       unreasonable, inappropriate, unnecessary, excessive force in public school.”

       Appellee’s Br. at 17. However, three of the cases that Haney cites in support are

       quite different than the case before us, and clearly distinguishable. See Safford

       Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 378–79 (2009) (finding that a

       strip search of a thirteen-year-old girl was unreasonable under the Fourth

       Amendment, but three school officials were protected from liability through

       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018   Page 11 of 14
       qualified immunity); New Jersey v. T.L.O., 469 U.S. 325, 347–348 (1985) (finding

       no Fourth Amendment violation where school officials searched a fourteen-

       year-old student’s purse); Michael C. v. Gresbach, 526 F.3d 1008, 1017–18 (7th

       Cir. 2008) (holding that child caseworkers in a private school who conducted

       under-the-clothes examinations of children’s bodies violated the children’s

       Fourth Amendment rights and were not entitled to qualified immunity because

       there were clearly established doctrines at the time as to what actions a

       caseworker must take when conducting an investigation).


[22]   We find the fourth case that Haney cites, Wallace by Wallace v. Batavia School

       Dist. 101, 68 F.3d 1010 (7th Cir. 1995), instructive. In that case, teacher James

       Cliffe (“Cliffe”) returned to his classroom to find two sixteen-year-old female

       students screaming at each other. Cliffe attempted to diffuse the situation,

       ultimately instructing one of the students, Wallace, to take her books and leave

       the classroom. Wallace was slow to gather her things, so Cliffe grabbed her by

       the left wrist and then the right elbow to hasten her exit. Wallace claimed Cliffe

       caused injury to her elbow, and through her mother, she sued Cliffe and the

       school corporation under § 1983 for violating her Fourth Amendment rights.

       The district court granted Cliffe’s and the school district’s motion for summary

       judgment, and Wallace appealed.


[23]   On appeal, the Seventh Circuit upheld the trial court’s grant of summary

       judgment and explained, “in seeking to maintain order and discipline, a teacher

       or administrator is simply constrained to taking reasonable action to achieve

       those goals. Depending on the circumstances, reasonable action may certainly

       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018   Page 12 of 14
       include the seizure of a student in the face of provocative or disruptive

       behavior.” Id. at 1014. And in the context of an alleged Fourth Amendment

       violation, “[the standard] does not ask what the teacher’s intentions were, and it

       does not ask if the particular student thought the conduct was out of bounds. It

       asks, at bottom, whether under the circumstances presented and known the

       seizure was objectively unreasonable.” Id. at 1015. The court affirmed summary

       judgment because it found that Cliffe was merely attempting to quell the

       disruption caused by the yelling, obscenities, and invitation to fight; and

       therefore, his conduct could not be seen as unreasonable. Id. at 1016.


[24]   In the case before us, M.H. was causing a disruption in class while students

       were taking a test. Moreover, similar to the actions of the teacher in Wallace,

       Butler used reasonable force to induce M.H. to sit back down in her seat in an

       effort to manage and maintain order over her classroom. The court in Wallace

       noted, “Public school teachers and administrators must have considerable

       latitude in performing their educational responsibilities, including maintaining

       order and discipline by reasonably restraining the liberty of students.” Id.


[25]   Viewing the facts in the light most favorable to Haney, she has failed to

       establish that Butler violated clearly established law when she spanked or

       smacked M.H.’s posterior to require her to sit back down in her seat. See Phillips

       v. Community Ins. Corp., 678 F.3d 513, 520 (7th Cir. 2012) (“Objective

       reasonableness of force is a legal determination rather than a pure question of

       fact for the jury to decide.”). In fact, because Indiana has authorized the use of

       moderate corporal punishment by teachers in schools, Butler’s conduct clearly

       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018   Page 13 of 14
       falls within the range of what our legislature has deemed permissible. Cole by

       Cole v. Greenfield-Central Community Schools, 657 F. Supp. 56, 59 (S.D. Ind.

       1986). As the Seventh Circuit aptly stated in Wallace, “the only thing

       unreasonable in this scenario is that Wallace has made a federal case out of a

       routine school disciplinary matter.” 68 F.3d at 1015. This is what has happened

       here, as well. Under the facts and circumstances in the case before us, as well as

       all applicable law, FWCS was entitled to summary judgment on the § 1983

       claim.


                                                  Conclusion
[26]   Based on the facts and circumstances before us, FWCS was entitled to

       summary judgment on the state law battery tort claim because as a matter of

       law, Butler’s alleged conduct falls within the scope of her statutory qualified

       immunity as a teacher managing a classroom. Additionally, FWCS was entitled

       to summary judgment on the § 1983 claim because, as a matter of law, Haney

       failed to show that Butler’s conduct could have violated a clearly established

       right. Accordingly, we reverse and remand.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1708-CT-1829 | February 5, 2018   Page 14 of 14
