                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         February 15, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CHRISTINA SCOTT, as mother and next
friend of her son, B.P., a minor,

      Plaintiff - Appellant,

v.                                                          No. 17-6043
                                                    (D.C. No. 5:16-CV-01027-M)
MID-DEL SCHOOLS BOARD OF                                   (W.D. Okla.)
EDUCATION, a governmental
administration serving the Mid-Del School
District; RICK COBB, an individual in his
official capacity as Superintendent of Mid-
Del Schools; ANDY COLLIER, as an
individual and his official capacity as
Principal of Kerr Middle School; LESLIE
BERGER, as an individual and her official
capacity as Assistant Principal of Kerr
Middle School; GREG MCGUIRE, as an
individual and his official capacity as
teacher at Kerr Middle School,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
         Christina Scott, as mother and next friend of B.P., who at all relevant times

was a minor attending Kerr Middle School in Oklahoma, appeals the district court’s

order dismissing her claims brought under 42 U.S.C. § 1983.1 Ms. Scott asserted that

the defendants—the School Board, school administrators, and a teacher—violated

B.P.’s constitutional rights when the teacher attacked him at school. We affirm in

part and reverse and remand in part.

   I.        BACKGROUND

         Because the district court dismissed the complaint for failure to state a claim

under Fed. R. Civ. P. 12(b)(6), we recount the underlying facts as alleged in the

complaint. On March 1, 2006, B.P. was being bullied by another student at school.

Followed by the other student, he went into Defendant McGuire’s classroom.

Mr. McGuire, a teacher at the school, also bullied B.P. by yelling, cursing, and

intimidating B.P. in front of the other students in the classroom. B.P. later informed

his mother of the incident. She reported the incident to Defendants Collier and

Berger, the school principal and assistant principal, who transferred B.P. to another

class.


         1
         Ms. Scott filed the notice of appeal before the district court resolved all
claims, but the district court later entered an order dismissing the remaining claims
with prejudice. Therefore, the premature notice of appeal ripened upon entry of the
subsequent final order because “the order leading to the premature notice of appeal
has some indicia of finality and is likely to remain unchanged during subsequent
court proceedings.” Elm Ridge Expl. Co. v. Engle, 721 F.3d 1199, 1209 n.5
(10th Cir. 2013) (internal quotation marks omitted). Accordingly, we have
jurisdiction to review the district court’s dismissal order. See id.

                                             2
      After school the next day, B.P. entered a school bathroom to change clothes

for baseball practice. Although the bathroom was in a hallway he did not normally

use, Mr. McGuire followed B.P. into the bathroom and began yelling insults at B.P.

While B.P. was in a stall undressing with his pants down, Mr. McGuire opened the

stall door by force. The door hit B.P. and pushed him back into the toilet and back of

the stall, causing B.P. numerous physical injuries. Mr. McGuire then entered the

stall, blocking the door, and continued to curse and insult B.P. Although B.P.

pleaded with Mr. McGuire to stop, McGuire “continued to yell at B.P. while B.P. was

defenseless with his pants down.” Aplt. App. at 9. During this time, Assistant

Principal Berger was standing outside the bathroom and heard the incident but did

nothing.

      After leaving the bathroom, B.P. reported the incident to his mother, who was

waiting in the school parking lot. She reported it to the police and Mr. Collier, who

downplayed the incident, apparently to protect Mr. McGuire. Mr. Collier then

instructed B.P. to change his clothes in the school office in the future.

      Mr. Collier later told Ms. Scott that Mr. McGuire’s actions warranted

discipline and that he would be written up if Ms. Scott did not make this information

public. Ms. Scott believed that Mr. McGuire was not adequately punished,

notwithstanding Mr. Collier’s statement that if he did this again, he would be arrested

and prosecuted. Mr. Collier told Ms. Scott that Mr. McGuire would be counseled not

to confront B.P. again, even though he might encounter him in the future. B.P. was


                                            3
afraid to return to school following these incidents and missed about one month of

school.

         Ms. Scott sued, asserting various claims based on the incidents. Defendants

filed a motion to dismiss, which included the defense of qualified immunity. The

district court granted the dismissal motion under Rule 12(b)(6), concluding that the

complaint failed to state a claim upon which relief could be granted on all claims

except the substantive-due-process claim against Mr. McGuire, but that Mr. McGuire

was entitled to the defense of qualified immunity. Ms. Scott appeals, arguing:

(1) Mr. McGuire was not entitled to qualified immunity, (2) the complaint stated a

claim against Mr. Collier and Ms. Berger in their individual capacities for failure to

protect, and (3) the complaint stated claims against the School Board for failure to

train and failure to supervise. She has waived all remaining claims by not including

them in her briefs. See United States v. Hardwell, 80 F.3d 1471, 1492 (10th Cir.

1996) (holding appellant waived issue “by failing to make any argument or cite any

authority to support his assertion”).

   II.      DISCUSSION

         “We review a Rule 12(b)(6) dismissal de novo.” Nixon v. City & Cty. of

Denver, 784 F.3d 1364, 1368 (10th Cir. 2015) (internal quotation marks omitted). In

doing so, “[w]e accept all the well-pleaded allegations of the complaint as true and

construe them in the light most favorable to [Ms. Scott],” id. (ellipsis and internal

quotation marks omitted). To withstand dismissal, “a complaint must contain


                                            4
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’ A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Moreover, “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements” are

not sufficient to state a claim for relief. Id. We also review de novo the legal

question of whether a constitutional right is clearly established for purposes of

qualified immunity. Pyle v. Woods, 874 F.3d 1257, 1263 (10th Cir. 2017).

       42 U.S.C. § 1983 provides that a person acting under color of state law who

“subjects, or causes to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured.” Where, as here, a complaint alleges that

school-inflicted corporal punishment violated substantive due process, this circuit

applies a shocks-the-conscience test. See Muskrat v. Deer Creek Pub. Sch., 715 F.3d

775, 786 (10th Cir. 2013). The inquiry is “whether the force applied caused injury so

severe, was so disproportionate to the need presented, and was so inspired by malice

or sadism rather than a merely careless or unwise excess of zeal that it amounted to a

brutal and inhumane abuse of official power literally shocking to the conscience.”

Id. at 786-87 (internal quotation marks omitted).




                                             5
      A. Qualified Immunity – Teacher McGuire

      An individual defendant sued under § 1983 “may raise a defense of qualified

immunity, which shields public officials from damages actions unless their conduct

was unreasonable in light of clearly established law.” T.D. v. Patton, 868 F.3d 1209,

1220 (10th Cir. 2017) (ellipsis and internal quotation marks omitted), petition for

cert. docketed (U.S. Jan. 23, 2018) (No. 17-1021). After the qualified-immunity

defense is raised, “the plaintiff carries a two-part burden to show: (1) that the

defendant’s actions violated a federal constitutional or statutory right, and, if so,

(2) that the right was clearly established at the time of the defendant’s unlawful

conduct.” Id. (internal quotation marks omitted). To meet this heavy burden the

“plaintiff may show clearly established law by pointing to either a Supreme Court or

Tenth Circuit decision, or the weight of authority from other courts, existing at the

time of the alleged violation. To be clearly established, existing precedent must have

placed the statutory or constitutional question beyond debate.” Id. (citation and

internal quotation marks omitted). Further, “[a]lthough there need not be a case

directly on point, [a state actor] cannot be said to have violated a clearly established

right unless the right’s contours were sufficiently definite that any reasonable official

in his shoes would have understood that he was violating it.” Id. (citations and

internal quotation marks omitted). And “[c]ourts must not define clearly established

law at a high level of generality,” but instead must particularize the law to the facts

under review. Id. (internal quotation marks omitted).


                                            6
       The district court held that the complaint sufficiently alleged facts to support a

substantive due process claim: “McGuire, a teacher, was acting out of malice, and in

retaliation for B.P. reporting the encounter between McGuire and B.P., which

resulted in B.P. being removed from McGuire’s classroom, when he forcibly entered

the bathroom stall in which B.P., a student, was dressing, physically injuring and

verbally assaulting an undressed B.P.” Aplt. App. at 72. The court further held,

however, that Ms. Scott failed to establish that the law was clearly established such

that Mr. McGuire “reasonably would have understood that his actions violated B.P.’s

Substantive Due Process right.” Id. at 76-77. Ms. Scott appeals this holding.2

Mr. McGuire does not contest the district court’s determination that the complaint

stated a constitutional violation—that his conduct in the school bathroom was

conscience-shocking. Rather, he argues that he did not violate clearly established

law.

       In the district court and in her appellate briefing, Ms. Scott cited Garcia ex rel.

Garcia v. Miera, 817 F.2d 650, 655 (10th Cir. 1987).3 There, this court held “that at


       2
         Although Ms. Scott argues on appeal that the district court erred in granting
qualified immunity to Mr. Collier and Ms. Berger, the court held that the complaint
failed to state a claim against either of these defendants, a holding we affirm in the
next section. Therefore, qualified immunity does not apply to them.
       3
         In district court, Ms. Scott relied on Garcia to support her claim that
Mr. McGuire violated B.P.’s constitutional rights but did not cite Garcia in her
discussion of clearly established law. Because the law regarding whether there was a
constitutional violation is integral to whether that law was clearly established, we do not
think Ms. Scott’s use of Garcia in district court forecloses this court from considering
Garcia to determine the legal question of whether Mr. McGuire violated clearly
                                                                                 (continued)
                                               7
some point of excessiveness or brutality, a public school child’s substantive due

process rights are violated by beatings administered by government-paid school

officials.” (citing Milonas v. Williams, 691 F.2d 931, 940, 942 (10th Cir. 1982)).

This court identified “three categories of corporal punishment.” Id. at 656. First,

“[p]unishments that do not exceed the traditional common law standard of

reasonableness are not actionable.” Id. Second, “punishments that exceed the

common law standard without adequate state remedies violate procedural due process

rights.” Id. And third, relevant here, “punishments that are so grossly excessive as

to be shocking to the conscience violate substantive due process rights, without

regard to the adequacy of state remedies.” Id.

      Garcia relied in part on Ingraham v. Wright, 430 U.S. 651 (1977), first

acknowledging Ingraham’s “explicit disclaimer” that it was deciding “whether

corporal punishment of a school child, in any degree of excessiveness, can violate

substantive rights under the Due Process Clause.” Garcia, 817 F.2d at 653.

Nevertheless, Garcia ruled that “Ingraham requires us to hold that, at some point,

excessive corporal punishment violates the pupil’s substantive due process rights.”

Id.




established law. See Pyle, 874 F.3d at 1263; cf. Gutierrez v. Cobos, 841 F.3d 895, 901
(10th Cir. 2016) (affirming summary judgment because “[p]laintiffs did not present any
legal authority or legal argument to the district court in opposition to [defendant’s]
motion for summary judgment based on qualified immunity”).

                                           8
      In Garcia, elementary-school officials administered two beatings to a nine-

year-old girl, immobilizing her and using a paddle that was split into two pieces so

that “when it hit, it clapped and grabbed,” and resulted in severe injuries. 817 F.2d at

653 (brackets and internal quotation marks omitted). Similarly here, Ms. Scott

alleged that Mr. McGuire caused numerous physical injuries to B.P. by hitting him

with the bathroom-stall door and pushing him back against the stall. She further

alleged that Mr. McGuire blocked B.P. in the stall and cursed and bullied him while

he was in the vulnerable position of having his pants down. Although the facts of

Garcia are not identical to those here, “we do not require plaintiffs to produce a

factually identical case, but allow some degree of generality in factual

correspondence.” Armijo ex rel. Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253,

1260 (10th Cir. 1998).

      At the Rule 12(b)(6) stage, the district court found that the complaint stated a

claim of conscience-shocking behavior by Mr. McGuire. Mr. McGuire’s alleged

conduct sufficiently resembles the conduct we held unconstitutional in Garcia such

that “a reasonable official in [his] position would have known that [his] actions

violated [B.P.’s] clearly established right,” T.D., 868 F.3d at 1213. He was therefore

not entitled to qualified immunity at this stage of the proceedings.

      B. Liability of Principal Collier and Assistant Principal Berger for Failure to
         Protect

      Ms. Scott contends the district court erred in rejecting her claim against

Mr. Collier and Ms. Berger in their individual capacities based on a danger-creation

                                           9
theory. The complaint alleged that Mr. Collier and Ms. Berger “knew of the danger

posed by keeping an aggressive, unstable teacher in regular employment, but did

nothing to protect B.P. from the direct danger that he faced by attending school.”

Aplt. App. at 17.

      Armijo articulated the criteria for liability of school employees under a

state-created danger theory. 159 F.3d at 1262-63. There, this court stated that “[t]he

key to the state-created danger cases lies in the state actors’ culpable knowledge and

conduct in affirmatively placing an individual in a position of danger. . . .” Id. at

1263 (ellipsis and internal quotation marks omitted). Consequently, “to be liable,

[state actors] must have used their authority to create an opportunity that would not

otherwise have existed for the third party’s acts to occur.” Id. (brackets and internal

quotation marks omitted).

      Ms. Scott argues that the act of removing B.P. from Mr. McGuire’s classroom

increased his risk of harm by Mr. McGuire and that Mr. Collier and Ms. Berger knew

of Mr. McGuire’s “aggressive and hostile disposition toward B.P.,” which

demonstrated a risk of violence. Aplt. Opening Br. at 11. These arguments do not

demonstrate that Mr. Collier and Ms. Berger affirmatively placed B.P. in danger.

Even if they were aware of the danger Mr. McGuire presented, the complaint does

not allege that they took any action that made B.P. more vulnerable to the alleged

danger. On the contrary, the complaint demonstrated that Mr. Collier and Ms. Berger




                                           10
took measures to separate B.P. from Mr. McGuire by removing him from

Mr. McGuire’s classroom and having him change clothes in the school office.

      Ms. Scott further alleged that Ms. Berger failed to intervene in the attack in the

school bathroom. She did not, however, allege any facts from which an inference

could be drawn that Ms. Berger affirmatively acted to create an opportunity for

Mr. McGuire to attack B.P., as required to state a danger-creation claim. See Armijo,

159 F.3d at 1263; see also Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 919 n.7

(10th Cir. 2012) (“[I]naction by the state in the face of a known danger is not enough

to invoke the protections of the Due Process Clause.” (internal quotation marks

omitted)). Therefore, the district court properly dismissed the danger-creation claim.

      C. Liability of School Board for Failure to Train and Supervise

      “Municipalities can be liable under 42 U.S.C. § 1983 only for their own

unlawful acts. Accordingly, to prove a § 1983 claim against a municipality, a

plaintiff must show the existence of a municipal policy or custom which directly

caused the alleged injury.” Pyle, 874 F.3d at 1266 (citation omitted). A municipal

policy may include “a formal regulation or policy statement, an informal custom that

amounts to a widespread practice, decisions of municipal employees with final

policymaking authority, ratification by final policymakers of the decisions of

subordinates to whom authority was delegated, and the deliberately indifferent failure

to adequately train or supervise employees.” Id.




                                          11
       For her claims of failure to train and supervise, Ms. Scott alleged that

Mr. Collier and Ms. Berger “were aware of Defendant McGuire’s aggression and

malice toward B.P., and yet did nothing to protect B.P. from McGuire’s wanton

disregard for student privacy and safety.” Aplt. App. at 15, 16. She further alleged

that after receiving a complaint of bullying, Mr. Collier and Ms. Berger failed to

implement safeguards to prevent further attacks and protect B.P. from “a dangerous

and unstable teacher.” Id. Ms. Scott also alleged that Mr. Collier “downplayed the

incident in an attempt to protect Defendant McGuire” and did not adequately punish

him. Id. at 10.

       These allegations fail to adequately allege a municipal policy. “Proof of a

single incident of unconstitutional activity is not sufficient to impose liability . . .

unless proof of the incident includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be attributed to a municipal

policymaker.” Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).

Thus, we conclude that the complaint contains insufficient factual allegations to

support an inference that Mr. Collier and Ms. Berger were acting pursuant to a policy

or custom when they responded to the first bullying incident or in failing to punish

Mr. McGuire more severely.

       We reject Ms. Scott’s argument that a School Board policy was established by

Mr. Collier’s and Ms. Berger’s handling of the single, initial bullying incident. She

relies on dicta in Board of County Commissioners v. Brown, 520 U.S. 397, 412


                                             12
(1997), stating, “Even assuming without deciding that proof of a single instance of

inadequate [job background] screening could ever trigger municipal liability . . . ,” to

argue that Mr. Collier’s and Ms. Berger’s actions constituted a School Board policy.

But none of Ms. Scott’s claims are based on allegations of a failure to investigate

Mr. McGuire’s background, as was the case in Brown, 520 U.S. at 415 (holding

sheriff’s failure to adequately examine defendant-officer’s record was irrelevant

unless in light of that record the defendant-officer’s “use of excessive force would

have been a plainly obvious consequence of the hiring decision”). Ms. Scott’s

allegations describe nothing more than an isolated event. They allege no facts to

support a claim that the response of Mr. Collier and Ms. Berger was a School Board

custom or policy.4 Accordingly, we hold that the complaint does not contain factual

allegations sufficient to support a plausible inference that a School Board policy

directly caused the injuries B.P. allegedly suffered, and the district court correctly

dismissed these claims.


      4
         Ms. Scott contends the district court should have granted leave to amend her
complaint to add an allegation that “[t]he behaviors and attitudes of the school
administration in this case certainly reflect a deliberate indifference to the dangers
posed to the students under their care such that an inference of a widespread custom
or policy can be easily inferred.” Aplt. Opening Br. at 14. “[B]ut this allegation is
the type of ‘formulaic recitation of the elements of a cause of action’ that is
insufficient to meet the Twombly pleading standard.” Pyle, 874 F.3d at 1266
(quoting Twombly, 550 U.S. at 555)). Therefore, amendment would have been futile
because the proposed amendment would not have saved the complaint from
dismissal. See Barnes v. Harris, 783 F.3d 1185, 1197 (10th Cir. 2015) (stating
amending a complaint is futile where the amended complaint would be subject to
dismissal).

                                           13
   III.   CONCLUSION

       The district court’s grant of qualified immunity to defendant McGuire is

reversed and remanded for further proceedings. The district court’s order dated

January 17, 2017, is affirmed in all other respects. Defendants’ motion to dismiss

this appeal for lack of jurisdiction is denied.


                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




                                            14
