                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1009


H.H., a minor, by and through her mother and next friend,
H.F.; H.F.,

                 Plaintiffs – Appellees,

           v.

WANDA MOFFETT, individually and in her official capacity as
an employee of the Chesterfield County School Board; ANN
MINGUZZI, individually and in her official capacity as an
employee of the Chesterfield County School Board,

                 Defendants – Appellants,

           and

CHESTERFIELD COUNTY SCHOOL BOARD; MARCUS J. NEWSOME, in his
official capacity as Superintendent of Chesterfield County
Schools,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cv-00223-RLW)


Argued:   December 4, 2008                   Decided:   July 7, 2009


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Affirmed and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge Michael joined.     Judge
Niemeyer wrote a dissenting opinion.
ARGUED:   Steven Latham Micas, COUNTY ATTORNEY’S OFFICE FOR THE
COUNTY OF CHESTERFIELD, Chesterfield, Virginia, for Appellants.
William   Henry  Hurd,   TROUTMAN   SANDERS,   L.L.P.,  Richmond,
Virginia, for Appellees.     ON BRIEF:     Stylian P. Parthemos,
COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF CHESTERFIELD,
Chesterfield, Virginia, for Appellants.        Kevin W. Mottley,
Stephen A. Northup, Siran S. Faulders, Stephen C. Piepgrass,
TROUTMAN SANDERS, L.L.P., Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

     This case concerns the treatment of a severely disabled

little    girl,    H.H.,    by    the    Appellants,    a   special    education

teacher and a teaching assistant.                H.H. and her mother, the

Appellees, have alleged, in an action brought under 42 U.S.C.

§ 1983 (2000), that Appellants maliciously kept H.H. restrained

in her wheelchair for hours at a time during the school day,

while    they   ignored    her,    verbally    abused   her,   and    schemed   to

deprive her of educational services.              The evidence taken in the

light    most     favorable       to    the   Appellees     demonstrates    that

Appellants’ conduct violated H.H.’s clearly established right to

freedom from undue restraint under the Fourteenth Amendment, and

Appellants are therefore not entitled to qualified immunity as a

matter of law.



                                         I.

     Since we are asked to review the district court’s handling

of the Appellants’ motion for summary judgment, we present the

facts in the light most favorable to the Appellees.                    H.H., age

seven at the time of the filing of briefs in this appeal, was

born with cerebral palsy and a neurological condition known as

polymicrogyria, a seizure-causing disorder.                  According to her

mother, H.F., although H.H. is disabled, she “can crawl around

and is very mobile,” engaging in activities like “looking at

                                          3
books,   playing     with    musical    instruments/toys,        swinging,      being

with other children, playing on the computer and crawling on

playgrounds.”        (J.A. 368.)      But, because she cannot yet walk on

her own, H.H. is transported in a wheelchair equipped with a

safety strap that prevents her from falling out.

       From September 2002 until June 2005, H.H. was enrolled in

pre-school      at    Marguerite       Christian     Elementary       School         in

Chesterfield      County,    Virginia.        According    to    H.F.,    H.H.      was

happy    at     Marguerite        Christian   and    was    always       an    active

participant in her class.             At the end of the 2004-2005 school

year,    H.H.   graduated     from     pre-school    and   was    assigned      to    a

kindergarten      program      at     Chesterfield      County’s     O.B.       Gates

Elementary School (“O.B. Gates”) for the 2005-2006 school year.

O.B. Gates is a magnet school that serves both general education

students and students with special needs and disabilities.

       There is some dispute about whether H.H. had an Individual

Education Plan (“IEP”) in place for her time at O.B. Gates, in

accordance with the Individuals with Disabilities in Education

Act.      However,     it    is    undisputed   that,      whether   by       IEP    or

otherwise, H.H.’s schedule was supposed to include the following

activities outside of her wheelchair:               60 minutes of individual

physical therapy every 2 weeks to help her strengthen her legs;

group and individual speech therapy (both in and out of her

chair) for 1 hour every week; group physical education training

                                         4
for   25-30    minutes     every    week;       hygiene    instruction,       including

toilet training, 3 times a day every day; floor play, at least

twice a day; mobility training for 30 minutes every day; and

recess (where she played both in and out of her chair) for 30

minutes every day.            Scheduled activities in which H.H. generally

was   to     remain    seated     included:         90    minutes     of     individual

occupational therapy every 2 weeks; group music training for 20

minutes every week; group library training for 20 minutes every

week; group art training for 20 minutes every week; lunch in the

cafeteria for 30 minutes every day; and classroom group circle

time for an hour every day.

      H.H. was assigned to Wanda Moffett’s multi-aged class of

students with severe disabilities at O.B. Gates.                       Ann Minguzzi

was   Moffett’s       teacher’s    aide    that    year.       According      to   H.F.,

Moffett displayed hostility towards her and her daughter from

the beginning of the year.                Moffett was allegedly especially

resistant to H.H. spending time outside of her wheelchair, even

though     H.F.   informed      Moffett     that    her    daughter    hated       to    be

confined in the wheelchair and was a very active child.

      H.F.     began     to    notice     that     her    daughter     was     becoming

increasingly          distressed,       anxious,         and   angry       about        her

experiences at O.B. Gates.                Every day as they approached the

school, H.H. would begin to cry or scream.                        Often when H.F.

returned to pick H.H. up from school, her daughter would be

                                            5
screaming.      H.H.’s time at home after school and on the weekends

was    generally      “calm    and    happy”      by   contrast.        (J.A.     371.)

According to H.F., H.H. also began to experience an increasing

number of “grand mal” seizures 1 during the 2005-2006 school year,

to    the   point    where    her    doctor      contemplated     performing      major

corrective brain surgery.

       Based   on    the   changes    she       noticed    in   her   daughter,     H.F.

became suspicious about the kind of treatment H.H. was receiving

at O.B. Gates, so she placed a small recording device on H.H.’s

wheelchair     from    April    18-20,      2006. 2       According    to   H.F.,   the

recordings “establish that H.H. spent most of her time confined

in the wheelchair,” based on the noises H.H. makes throughout

the recordings and based on the proximity of H.H.’s voice to the

microphone. 3       H.F. also claims that the recordings show that H.H.



       1
       “Grand mal” seizures are ones involving the entire body.
They are characterized by a loss of consciousness and violent
muscle contractions.
       2
       In the district court, Appellants have challenged the
admissibility of evidence from the recording device as a
violation of the Federal Wiretapping Act, 18 U.S.C. § 2510 et
seq. (2006).   For the limited purpose of this appeal, we will
assume admissibility.
       3
       This Court has been provided with copies of the audio
recordings obtained by H.F.; however, the quality of the
recordings and the amount of environmental noise make it
difficult to hear clearly what transpired.   Because this comes
to us on summary judgment, we will assume H.F.’s interpretation
of the recordings.



                                            6
received almost no educational services. 4                Instead, Moffett and

Minguzzi kept H.H. in her chair and ignored her, spending their

time gossiping, making fun of both H.H. and other children in

the    school,      and   conspiring   about   how   to    prevent   H.H.    from

receiving extended school-year services.              The audio recordings

allegedly capture adult voices telling H.H. that she is “gross,”

“coddled,” and “has a face only a mother could love.”                        The

recordings also suggest that Appellants may have been planning

to sabotage an upcoming IEP meeting by instructing other school

employees to say as little as possible at the meeting so that

H.H. would not be offered extended school year services.                  At one

point, when H.H. screamed or cried to get the adults’ attention,

H.F.       claims   the    audiotape   indicates     that    an   adult     voice

responded, “HEY! Shut the f--- up!” 5           (J.A. 372.)       After hearing

the recordings, H.F. immediately removed H.H. from O.B. Gates.

H.H. has not experienced a “grand mal” seizure since then.



       4
       At the start of the school year, Moffett’s class had six
children in it, but as the year progressed, some of the students
transferred or left because of illness, leaving only two
students (including H.H.) who regularly attended, and one other
who was on the class roll but was frequently absent.      On the
days when the audio recording device was active, H.H. was often
the only child in the classroom.
       5
       Both Moffett and Minguzzi deny ever making this statement.
The audio recording is rather muffled at this point, and Moffett
suggests that the statement may have been, “[P]ut the stuff up.”
(Appellants’ Reply Br. at 16 n.10.)



                                        7
      On April 17, 2007, H.F. filed a complaint in the United

States District Court for the Eastern District of Virginia, on

behalf of her daughter and herself, against Moffett, Minguzzi,

the      Chesterfield        County       School         Board     (“CCSB”),       and

Superintendent        of   Chesterfield    County     Schools      Marcus    Newsome.

The complaint included a claim under 42 U.S.C. § 1983 (2000),

alleging a violation of H.H.’s Fourteenth Amendment rights, as

well as common law claims of intentional infliction of emotional

distress and false imprisonment, and claims of violations of the

Americans with Disabilities Act and the Rehabilitation Act.                          On

September    7,      2007,   Moffett   and     Minguzzi     filed    a   motion   for

summary judgment, in which they asserted that they were entitled

to    qualified      immunity     on   Appellees’         § 1983    claim.        H.H.

responded with a motion for a continuance pursuant to Federal

Rule of Civil Procedure 56(f) to allow her to obtain additional

discovery to support her opposition to Moffett and Minguzzi’s

motion    for    summary     judgment.         Moffett    and    Minguzzi    filed    a

motion for a protective order on October 26 to suspend discovery

on grounds of qualified immunity.

      After a hearing on the motions, the district court entered

an order granting the plaintiffs’ motion for a continuance under

Rule 56(f), holding Moffett and Minguzzi’s motion for summary

judgment        in     abeyance    until        plaintiffs       “have      completed

discovery,”      and    denying   Moffett       and   Minguzzi’s     motion    for    a

                                           8
protective order. 6              (J.A. 556.)         The district court found that

the     parties       disputed       material        facts     regarding      defendants’

treatment of the plaintiffs that would affect the outcome of the

case, and that much of the relevant evidence was in the control

of defendants.          Thus, in the district court’s view, defendants’

motion for summary judgment was “premature” and the court would

defer       ruling    on    it    until   plaintiffs          had   “adequate    time     to

conduct discovery.”              (J.A. 551-52.)           The district court went on

to    find     that     plaintiffs        had       alleged    “the    violation     of    a

constitutional right . . . [that] was clearly established at the

time of the alleged violation.”                 (J.A. 553.)

        Moffett and Minguzzi now appeal this order, arguing that

the district court did not have the authority to hold their

motion       for     summary      judgment      in    abeyance      because   they    were

entitled to qualified immunity as a matter of law.



                                             II.

        Before we consider the merits of Moffett and Minguzzi’s

appeal,       we     must    first     resolve        a    threshold     jurisdictional


        6
        The district court also granted Newsome’s motion to
dismiss and granted in part and denied in part CCSB’s motion to
dismiss.   The court found that CCSB was entitled to sovereign
immunity on Appellees’ state tort claims, but that additional
discovery was needed to determine whether the school board could
be held liable for its employees’ conduct under § 1983.



                                                9
question raised by the Appellees.                 Appellants claim that we have

jurisdiction to hear this appeal under Mitchell v. Forsyth, 472

U.S. 511 (1985).             Appellees counter, however, that a decision to

hold       a    motion   for      summary   judgment   in   abeyance   is    not    an

immediately appealable final decision, even under Mitchell.

       Section 1291 of Title 28 of the United States Code vests

courts of appeals with “jurisdiction of appeals from all final

decisions of the district courts of the United States.”                      Denials

of motions for summary judgment are generally not considered

“final decisions” and are therefore not appealable.                       See Smith

v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th

Cir. 2002).          But, in Mitchell, the Supreme Court recognized that

denials of qualified immunity at the summary judgment stage fell

within         the   scope   of    the   collateral    order   doctrine     and   were

properly appealable “final decisions” under 28 U.S.C. § 1291. 7

472 U.S. at 524-30.


       7
       The collateral order doctrine, as articulated in Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949),
allows for interlocutory review of certain issues within a case
where those issues “finally determine claims of right separable
from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until
the whole case is adjudicated.”     Essentially there are three
criteria necessary for Cohen’s collateral order exception to
apply: the order over which review is sought must conclusively
determine the disputed questions; it must be independent of the
merits of the underlying action; and it must regard a claim that
would be effectively unreviewable if appeal was delayed until
(Continued)
                                             10
      The    Mitchell       Court     recognized       that,     because     qualified

immunity is “an immunity from suit rather than a mere defense to

liability,” the entitlement “is effectively lost if a case is

erroneously permitted to go to trial.”                     Id. at 526.         Thus a

denial      of    summary      judgment          “conclusively     determines        the

defendant’s claim of right not to stand trial on the plaintiff’s

allegations.”        Id.    at    527      (emphasis     omitted).       Moreover,     a

qualified immunity determination presents a discrete question of

law   --    “whether     the     legal     norms    allegedly     violated     by    the

defendant were clearly established at the time of the challenged

actions” –- that does not require the court to “consider the

correctness of the plaintiff’s version of the facts, nor even

determine whether the plaintiff’s allegations actually state a

claim.”     Id. at 528.

      If Moffett and Minguzzi were appealing an outright denial

of    qualified     immunity        then    their    appeal      would     plainly   be

reviewable under Mitchell.                 But here, the district court has

placed Appellants’ motion for summary judgment in abeyance until

plaintiffs       “have   completed         discovery.”      (J.A.    556.)       Thus,



the termination of district court proceedings. Id. at 546. In
Mitchell, the Court found that a denial of qualified immunity
meets all three of the Cohen collateral order criteria.
Mitchell, 472 U.S. at 524-30.




                                            11
Appellees     argue,       “the      district       court    never       made       any    sort    of

final ruling.”         (Appellees’ Br. at 3.)

     Whatever        the    technical        merits        of    this       argument,        it    is

indisputable that the district court has effectively decided the

discrete question of law that is now being appealed –- whether,

under the facts alleged by Appellees, Moffett and Minguzzi have

violated Appellees’ clearly established constitutional rights.

In its Memorandum Opinion, the district court says plainly that

it has “determined that plaintiff’s complaint does allege the

violation     of   a    constitutional          right,       and       that    the       right    was

clearly    established          at    the   time      of     the       alleged       violation.”

(J.A.   553.)        The    district        court     only       placed       the       motion    for

summary      judgment      in     abeyance      so     that          Appellees       could       take

additional discovery in order to demonstrate that, as a factual

matter, Moffett and Minguzzi had violated their constitutional

rights.

     Allowing Appellees to now force Moffett and Minguzzi into

discovery, without recourse to appeal the district court’s legal

finding,     would     contravene        the    spirit          of    the     Supreme       Court’s

decision     in    Mitchell.           Mitchell       underscored           that        “even    such

pretrial matters as discovery are to be avoided if possible.”

472 U.S. at 526.            “Unless the plaintiff’s allegations state a

claim   of    violation         of    clearly       established          law,       a     defendant

pleading qualified immunity is entitled to dismissal before the

                                               12
commencement of discovery.” 8                Id. (emphasis added); see also

Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other

grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009) (“[W]e

repeatedly have stressed the importance of resolving immunity

questions     at   the   earliest        possible        stage     in   litigation.”

(internal     citation      and        quotations        omitted));      Harlow      v.

Fitzgerald,    457   U.S.     800,     818     (1982)    (“Until    this    threshold

immunity    question     is       resolved,       discovery        should      not   be

allowed.”);    cf.   Johnson      v.    Jones,     515    U.S.   304,    313    (1995)

(limiting Mitchell to allow only qualified immunity appeals that

are based on a claim that the judge, taking the facts as given,

erred as a matter of law in finding a violation of clearly

established law); Winfield v. Bass, 106 F.3d 525, 529-30 (4th

Cir. 1997) (en banc) (same).




     8
        Appellees observe that, even if qualified immunity
protects Moffett and Minguzzi from the § 1983 claim, it is no
defense to Appellees’ state law claims of intentional infliction
of emotional distress and false imprisonment.    Thus, Appellees
argue that a ruling on the qualified immunity issue would be
premature “[b]ecause the burden of discovery will fall on the
government and its agents no matter what the outcome of the
qualified immunity question.”     (Appellees’ Br. at 48.)     In
Behrens v. Pelletier, 516 U.S. 299, 312 (1996), the Supreme
Court rejected just such an argument, noting that the “right to
[qualified] immunity is a right to immunity from certain claims,
not from litigation in general; when immunity with respect to
those claims has been finally denied, appeal must be available,
and cannot be foreclosed by the mere addition of other claims to
the suit.”



                                          13
      Several    of    our   sister    circuits         have    found   that    similar

deferrals   of    decision      on    an   immunity      claim     were    immediately

appealable.      In X-Men Security, Inc. v. Pataki, 196 F.3d 56, 64,

67 (2d Cir. 1999), for example, the Second Circuit determined

that it had jurisdiction to review a district court’s rejection

of the defendant’s claim of qualified immunity which was found

to be “premature in advance of discovery.”                     The court explained:

           Where the district court bases its refusal to
      grant a qualified-immunity motion on the premise that
      the court is unable to, or prefers not to, determine
      the motion without discovery into the alleged facts,
      that refusal constitutes at least an implicit decision
      that the complaint alleges a constitutional claim on
      which relief can be granted.        That purely legal
      decision does not turn on whether the plaintiff can in
      fact elicit any evidence to support his allegations;
      it thus possesses the requisite finality for immediate
      appealability under the collateral order doctrine.
      . . . A district court’s perceived need for discovery
      does not impede immediate appellate review of the
      legal questions of whether there is a constitutional
      right at all and, if so, whether it was clearly
      established at the time of the alleged conduct . . . .

Id. at 66-67; see also Summers v. Leis, 368 F.3d 881, 887 (6th

Cir. 2004) (“This Court finds that the district court’s refusal

to   address     the   merits    of    the      defendant’s       motion    asserting

qualified   immunity     constitutes        a    conclusive       determination    for

the purposes of allowing an interlocutory appeal.”); cf. Wicks

v. Miss. State Employment Servs., 41 F.3d 991, 995 (5th Cir.

1995) (reversing a district court’s denial of a protective order

intended    to    prevent    discovery          prior    to     consideration    of   a


                                           14
defendant’s motion to dismiss on qualified immunity grounds);

Valiente v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992) (finding

immediately appealable a district court’s refusal to entertain a

qualified immunity claim on summary judgment); Smith v. Reagan,

841 F.2d 28, 31 (2d Cir. 1988) (“By holding the decision [on the

State’s Eleventh Amendment immunity motion] in abeyance pending

the completion of all discovery in the case, the district court

effectively denied that right.”).

      Here the district court plainly decided that, as a matter

of    law,    Moffett    and   Minguzzi’s       alleged     conduct     violated

Appellees’ clearly established constitutional rights.                  The fact

that this decision was made in the context of placing Moffett

and Minguzzi’s motion for summary judgment in abeyance does not

place it outside the realm of the collateral order doctrine.                 We

find,    therefore,     that   we   have     jurisdiction    to    review   this

discrete question of law.



                                      III.

      Turning now to the merits of the appeal, Appellants are

entitled to qualified immunity if they can show that they have

not     violated   Appellees’       clearly    established        constitutional

rights.      Harlow, 457 U.S. at 818.         Appellees argue that Moffett

and Minguzzi violated H.H.’s clearly established substantive due

process right to freedom from undue restraint by keeping her

                                       15
physically restrained in her wheelchair for hours at a time.                                 We

agree       inasmuch      as    the    facts      alleged     by    Appellees       create     a

reasonable inference that the Appellants’ conduct was motivated

by malice.

        We    have     long      recognized         that     “‘[liberty]         from   bodily

restraint . . . [lies at] the core of the liberty protected by

the     Due        Process      Clause      [of     the      Fourteenth      Amendment].’”

Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (quoting Greenholtz

v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Powell, J.,

concurring in part and dissenting in part)).                           Because restraint

cases require us to balance an individual’s liberty interest

against a state interest in using the restraint, “[t]he question

.   .   .     is    not     simply     whether      a     liberty     interest      has   been

infringed       but    whether        the   extent      or   nature    of   the     restraint

. . . is such as to violate due process.”                              Id. at 320.           In

Youngberg, for example, we found that a state mental institution

could    “not       restrain      residents       except     when    and    to    the   extent

professional judgment deems this necessary . . . .”                              Id. at 324.

        In this case, conceivable legitimate justifications exist

for keeping H.H. strapped into her wheelchair.                          It is undisputed

that,    because       of      her    disabilities,        H.H.    could    not    be   seated




                                               16
safely in her chair without the use of some sort of restraint. 9

Furthermore,        during   the   course    of   a   normal   school    day,    H.H.

would often need to be seated while being instructed.                      However,

on Appellees’ facts, it was not educational or safety concerns

that       motivated   Appellants’    conduct.        Nor   even   was   it     merely

laziness       or   incompetence.       Instead,      Appellees       suggest    that

Appellants made the decision to keep H.H. restrained “for long

periods of time . . . . with malice . . . [and] with callous and

deliberate indifference toward the rights of H.H.” 10                    (J.A. 19.)

Appellees       have   supported     these   allegations       with    evidence    of

Appellants’ animus, namely their early hostility towards H.H.,

their cruel and verbally abusive remarks to the child, and their

comments suggesting that they were conspiring to prevent from

her getting educational services to which she might otherwise

have been entitled.           Appellees’ allegations are all the more

concerning given H.H.’s limited ability to communicate verbally,




       9
       H.H.’s wheelchair is equipped with a lap belt for just
this reason. H.H.’s other seating option in her classroom was a
Rifton chair -- a chair adapted especially to provide extra
upper body support to children with severe disabilities.     The
chair employs a belt system to keep a disabled child upright and
also comes with a tray attachment. (See J.A. 307.)
       10
       We need make no judgment as to whether H.H.’s substantive
due process rights would be implicated if Appellants had acted
out of laziness or incompetence because Appellees have alleged
that Appellants acted out of malice.



                                        17
meaning that she could neither report nor reject the Appellants’

conduct.

       Where the use of a restraint is “so inspired by malice

. . .    that       it   amount[s]     to     a    brutal    and      inhumane         abuse    of

official power literally shocking to the conscience,” we cannot

but    find     that     it    violates       an    individual’s        substantive            due

process rights.           Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.

1980)    (emphasis       added).         Here,     if     Moffett     and   Minguzzi       were

physically restraining H.H. for hours on end, and using that

time    to    verbally        abuse   her    and    strategize        against      her,    that

behavior        certainly         shocks          the     conscience.              In      such

circumstances, we also must conclude that Appellants violated

clearly established law, as a reasonable teacher would plainly

recognize that maliciously restraining a child for long periods

of    time    was    unlawful.         See    Jefferson          v.   Ysleta      Independent

School District, 817 F.2d 303 (5th Cir. 1987) (affirming denial

of qualified immunity where teacher tied an eight-year-old child

to her chair with a jump rope for almost two full school days);

cf. Heidemann v. Rother, 84 F.3d 1021, 1029 (8th Cir. 1996)

(granting       qualified       immunity       where      teachers      used       a    blanket

restraint on a developmentally disabled child at the direction

of a physical therapist).

       The dissent would find Moffett and Minguzzi entitled to

qualified      immunity        because      “we    have    not    found     any    case    that

                                              18
holds   that     a    teacher,     who   straps    a     disabled   child   in    her

wheelchair in the classroom, violates the child’s constitutional

right to be free from restraint.”                 (Diss. Op. at 1-2).       Yet we

need not identify a case that is “factually on all-fours” in

order   to     find     that   a   clearly      established     right   has      been

violated.      Jefferson, 817 F.2d at 305; see also Hope v. Pelzer,

536 U.S. 730, 739 (2002).           Rather, “[f]or a constitutional right

to be clearly established, its contours ‘must be sufficiently

clear that a reasonable official would understand that what he

is doing violates that right.’”                Hope, 536 U.S. at 739 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

     We have little difficulty finding that a reasonable teacher

would know that maliciously restraining a child in her chair for

hours   at   a   time    interferes      with     that   child’s    constitutional

liberty interests.         In Jefferson, the court found that, where

plaintiffs alleged that a teacher had tied an eight-year-old

student to a chair with a jump rope for an entire school day,

the teacher was not entitled to a defense of qualified immunity.

817 F.2d 303.         The use of the jump rope restraint was found to

violate the child’s right to freedom from undue bodily restraint

even though it was supposedly being employed “as part of an

instructional technique imposed by school policy.”                    Id. at 304.

Jefferson thus reinforced the point made in Hall:                    even where a

teacher may have a conceivably permissible justification for use

                                          19
of a restraint, her actions will not be protected by qualified

immunity    when    they    amount     to       an   “abuse   of    official     power

literally shocking to the conscience.”                Hall, 621 F.2d at 613.

     The Eighth Circuit’s decision in Heidemann is not to the

contrary.     In that case, a disabled child’s special education

teachers received qualified immunity for their use of a blanket

restraint    because       the     court    found     that    the    restraint      was

employed at the advice of a licensed physical therapist under

contract with the school.              Heidemann, 84 F.3d at 1029.                  The

facts of Heidemann are a far cry from the “abuse of official

power,” Hall, 621 F.2d at 613, that is alleged here.

     We stress that Appellees’ facts make this an unusual case,

and our opinion is one that no reasonable teacher who errs in

judgment    ought   to     fear.      Qualified       immunity      is   intended    to

protect officials who make reasonable mistakes about the law.

Saucier, 533 U.S. at 206.              But the immunity simply does not

extend protection to an official motivated by the kind of bad

faith alleged here. 11




     11
        Today’s opinion does not, as the dissent worries,
“creat[e] a right of public school children either to be
instructed or to be free to roam the classroom as they wish.”
(Diss. Op. at 6.)     It simply recognizes that a teacher who
maliciously employs physical restraints to keep a student in her
seat for long periods of time violates that child’s clearly
established constitutional rights.



                                           20
                                         IV.

      This   appeal    came   to    us   as    a   challenge   to       the   district

court’s decision to hold Appellants’ motion for summary judgment

in   abeyance,   grant    the      Appellees’      motion   for     a    Rule    56(f)

continuance, and deny the Appellants’ motion for a protective

order.   The Appellants have argued that they were entitled to

qualified immunity and that we should accordingly reverse these

three rulings.        Because we have found that, on the facts taken

in the light most favorable to Appellees, the Appellants are not

entitled to qualified immunity as a matter of law, and because

Appellants have raised no other question of error on the part of

the district court, we affirm and remand to the district court

for further proceedings consistent with this opinion.



                                                         AFFIRMED AND REMANDED




                                         21
NIEMEYER, Circuit Judge, dissenting:

      H.H., a severely disabled seven-year old girl -– she can

neither walk nor talk -– and her mother commenced this action

against two public school teachers for strapping H.H. into a

wheelchair for too extensive a time, even though strapping H.H.

into the chair was necessary to enable her to sit up in her

chair.      As the majority notes, “It is undisputed that, because

of her disability, H.H. could not be seated safely in her chair

without     the    use   of   some     sort       of    restraint.”          While   the

educational       undertaking,     and   indeed         her   Individual      Education

Plan, required that H.H. be strapped in her chair for most of

the   school      day,    H.H.’s     mother        contends    that    the     teachers

strapped her in too long in furtherance of their own convenience

and that the teachers maliciously mocked the child’s disability

while she was in her chair.                 Based on these allegations, H.H.

and   her    mother      contend     that        the    teachers    violated     H.H.’s

constitutional right to be free from undue restraint.

      The    teachers    contend     that        H.H.   and   her   mother    have   not

alleged a violation of a constitutional right, much less a well-

established constitutional right of which they should have been

aware.      Accordingly, they claim that the complaint should be

dismissed, based on their qualified immunity, and I agree.




                                            22
       To begin with, we have not found any case that holds that a

teacher, who straps a disabled child in her wheelchair in the

classroom, violates the child’s constitutional right to be free

from restraint, even if the child is strapped in her chair a few

hours longer than anticipated by the educational program and

even if the restraint is imposed for improper motives.               Any

assumption that such a constitutional right exists as a well

established right so that a reasonable teacher would know that

she is violating the constitution has no basis in any Supreme

Court case or Fourth Circuit case.          Indeed, the closest case

decided in our circuit involved a claim that police officers,

who handcuffed a prisoner to a light pole in the middle of a

deserted parking lot and left the prisoner there for hours until

the police officers from another county could pick the prisoner

up, violated the prisoner’s constitutional rights.          See Robles

v. Prince George’s County, Md., 302 F.3d 262 (4th Cir. 2002).

In that case, we held that the police officers did not violate a

well-established constitutional right.       Id. at 270.

       The most analogous decision we could find is the Eighth

Circuit’s decision in Heidemann v. Rother, 84 F.3d 1021 (8th

Cir. 1996), where the plaintiff, a nine-year old nonverbal child

with    severe   mental   and   physical   disabilities,   claimed   her

teachers violated her constitutional rights when they used a

                                   23
therapeutic treatment referred to as “blanket wrapping.”                            Under

the procedure, the child was bound with a blanket so that she

could not use her arms, legs, or hands for hours at a time.

Despite the fact that the plaintiff alleged that the “blanket

wrapping was used as a means of physical restraint . . . [and]

that it was administered as a substitute for educational and

habilitative       programming         merely       for   defendants’    convenience,”

id. at 1026, the Eighth Circuit held that the teachers’ conduct

did   not    amount      to   a    constitutional          violation    and    that   the

teachers     were       entitled       to     qualified     immunity.         The   court

concluded        that   “even     if    the    blanket      wrapping    treatment     did

constitute a substantial departure from professional norms, . .

. a reasonable official would not have known that to be true.”

Id. at 1029.

      H.H. and her mother have struggled both in their briefs and

at oral argument to define a precise constitutional right that

the teachers in this case allegedly violated.                          Ultimately they

settled     on    the   teachers’       “purposeless        physical    restraint”     of

H.H. in her chair, contending that it violated H.H.’s right to

be free from unjustified bodily restraint, as protected by the

Due Process Clause of the Fourteenth Amendment.                           They argued

that the teachers violated H.H.’s protected liberty interest by




                                               24
keeping      her   “unnecessarily       strapped        and       restrained       in   her

wheelchair for hours at a time.”

        On   the   record   in   this      case,   however,          I    simply    cannot

understand how one can contend that the physical restraint of

H.H. was “purposeless.”          The lap belt on H.H.’s chair had a very

clear purpose, as her mother recognized, because H.H. could not

be seated safely in her chair without being strapped in it.

When we take the lap belt itself out of the calculus, we are

left with a claim that keeping H.H. in her chair “for hours at a

time”    without    instruction      was    in   effect       a    purposeless      and   a

constitutionally         violative      governmental          restraint.            Stated

otherwise, H.H. and her mother must, of necessity, be contending

that H.H. had a constitutional right to be instructed or to be

out    of    her   wheelchair.       But    school      children          are   routinely

required to sit in their chairs “hours at a time,” at the sole

judgment      of   the   teacher.       Surely     if    a        teacher    required      a

classroom of students to be seated for a full school day because

the teacher did not wish to teach the students or to interact

with     them,     she   would    not      be    depriving          the     students      of

constitutionally         protected      liberty.          I        therefore,       cannot

understand how H.H. and her mother can claim a constitutional

right for H.H. not to be kept in her chair for hours at a time




                                           25
when similarly situated non-disabled children do not have such a

right.

       By denying the teachers in this case qualified immunity,

the majority seems to insist (1) that the teachers should have

knowledge of some constitutional right that has not yet been

defined by the Supreme Court or by the Fourth Circuit, and (2)

that     the    teachers      deliberately      violated      that    constitutional

right.     Qualified immunity protects public school teachers “from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of   which      a   reasonable     [school      teacher]      would    have   known.”

Harlow    v.     Fitzgerald,      457   U.S.    800,    818    (1982).        And   the

“relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

[school        teacher]    that    [her]    conduct      was    unlawful      in    the

situation [she] confronted.”            Saucier v. Katz, 533 U.S. 194, 202

(2001) (emphasis added) (citing Wilson v. Layne, 526 U.S. 603,

615 (1999) (“[A]s we explained in Anderson, the right allegedly

violated must be defined at the appropriate level of specificity

before    a     court   can   determine    if   it     was   clearly   established”

(emphasis added))).

       Neither the plaintiffs nor the majority have identified any

case that would instruct the teachers in this case that their

                                           26
conduct,       even     if    improperly            motivated,         violated         H.H.’s

constitutional         rights.        The    closest       they      come    is   a    single,

factually      distinguishable         case    out        of   the   Fifth     Circuit,     in

which a teacher punished a nine-year old child by tying her to a

chair with a jump rope for almost two school days, not allowing

her even to use the restroom.                      See Jefferson v. Ysleta Indep.

Sch. Dist., 817 F.2d 303, 304-5 (5th Cir. 1987).                            Of course, the

jump   rope     was    not   required       for     any    safety     consideration,        as

here, but rather was used to punish the child.                         Id.

       In sum, the majority seems to be creating a right of public

school children either to be instructed or to be free to roam

the classroom as they wish.                 While H.H. and her mother may have

claims    for    alleged     failures        to     educate       H.H.      properly,     they

should not be allowed to morph those claims into constitutional

claims against teachers in their personal capacity.                                   I submit

that   the     implication       of   the     majority’s        holding,       which     plows

entirely new ground, is far-reaching and leaves public school

teachers exposed to constitutional claims in circumstances where

they     may    have     simply       exercised        poor       judgment,       even     for

unacceptable reasons.            Because we erroneously deny these school

teachers qualified immunity, I dissent.




                                              27
