                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-2001

Gottlieb v. Laurel Highlands Sch
Precedential or Non-Precedential:

Docket 00-3422




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Recommended Citation
"Gottlieb v. Laurel Highlands Sch" (2001). 2001 Decisions. Paper 263.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/263


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Filed November 15, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3422

RHONDA GOTTLIEB, by and through her guardian and
parent, Mary Calabria,
       Appellant

v.

LAUREL HIGHLANDS SCHOOL DISTRICT;
MICHAEL CARBONARA

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 98-cv-01013)
District Judge: The Honorable Donald J. Lee

ARGUED MAY 2, 2001

Before: MANSMANN, NYGAARD, and ROSENN,
Circuit Judges.

(Filed: November 15, 2001)

       Peter M. Suwak, Esq. (Argued)
       P.O. Box 1
       Pete's Surplus Building
       Washington, PA 15301

        Attorney for Appellant
       Daniel F. LaCava, Esq. (Argued)
       850 Washington Avenue
       Carnegie, PA 15106

        Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge:

The District Court granted summary judgment in favor of
Laurel Highlands School District and its assistant principal,
Michael Carbonara, on a student, Rhonda Gottlieb's,
excessive force claims under 42 U.S.C. S 1983. Gottlieb filed
her S 1983 suit in the Fayette County Court of Common
Pleas along with a state assault and battery claim. The
matter was then removed to the District Court for the
Western District of Pennsylvania and referred to a
Magistrate Judge. Appellees filed a Motion for Summary
Judgment, which the Magistrate Judge recommended be
granted. The District Court agreed and granted the motion
on the S 1983 claims. The assault and battery claim was
remanded to the Fayette County Court of Common Pleas.
Appellant Gottlieb contends on appeal that there remain
issues of material fact with respect to appellee Carbonara,
and facts ignored by the District Court, which would
establish "municipal liability" with respect to her claims
against the School District. We will affirm the District
Court.

I. BACKGROUND

On or about February 9, 1996, Rhonda Gottlieb, then a
junior at Laurel Highlands Public High School, entered the
school with the intention of confronting another female
student, Leah Saluga, about her relationship with Gottlieb's
ex-boyfriend. Gottlieb was a disruptive student with a
lengthy disciplinary record at the school. On this day she
arrived late and apparently did not plan on attending
classes. Upon her arrival, Gottlieb proceeded directly to
Saluga's classroom. The two argued without physically
engaging each other, and a school security officer arrived.

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The security officer instructed Gottlieb to leave the building,
but Gottlieb disobeyed and continued to threaten Saluga.
The security officer then escorted Gottlieb to the principal's
office.

Gottlieb stood in the doorway of assistant principal
Michael Carbonara's office while he spoke with a teacher.
Carbonara then allegedly began yelling at Gottlieb and
spoke a few words to another principal, Robert Raho. Raho
then told Gottlieb that he had just been on the phone with
Gottlieb's mother and that Gottlieb was not allowed in
school until a parent-teacher conference took place.
According to Gottlieb, Carbonara then told her to"shut up,
because he didn't want to hear nothing [sic][s]he had to
say" and pushed her shoulder with his hand, propelling her
backwards into a door jam. As a result of this contact,
Gottlieb's lower back struck the door jam. Gottlieb
described the encounter in her deposition:

       Q. Were you caused to fall to the floor from this being
       pushed?

       A. No. Its [sic] not like he pushed me to try to knock
       me out or anything. He didn't! its [sic] not like he like
       hauled off [and] like cold-cocked me to knock me out.
       It wasn't like that. He was just in a fit of rage, and he
       was mad. And he was yelling, and it happened.

       Q. Is it your belief that Mr. Carbonara intended to force
       you into the doorjamb?

       A. No. Why would he just all of a sudden hit me? I
       never did nothing to the man.

       Q. Is it your belief that Mr. Carbonara intended to hurt
       you at all?

       A. No, I just think he was mad, and he didn't know
       what he was doing.

       Q. And do you know why he was mad?

       A. Probably because I was up there acting like an
       immature kid at the high school. I shouldn't have been
       there, and I went there.

Gottlieb alleges that she suffers chronic back pain and
cramping as a result of this impact. She has been treated

                                3
by several doctors and chiropractors for the injury. She has
been advised to avoid strenuous activities involving her
back, and she has not been able to perform various jobs or
participate in some leisure activities.

Carbonara was earlier involved in a physical altercation
with an opposing football coach, and Gottlieb therefore
argues that the School District is liable because of its
failure to address the risk Carbonara posed to students.

II. DISCUSSION

A. Gottlieb's S 1983 Claim Against Carbonara

i) The Specific Constitutional Right Allegedly Infringed

We first must "identify[ ] the specific constitutional right
allegedly infringed" and determine if Gottlieb's claim should
be reviewed under the Fourth, Fifth, or Fourteenth
Amendment. Graham v. Connor, 490 U.S. 386, 394, 109 S.
Ct. 1865, 1870 (1989). Because different standards attach
to the various rights, identifying the proper constitutional
approach is essential. Here, the difference between
reviewing Carbonara's actions under the reasonableness
standard of the Fourth Amendment or the shocks the
conscience standard of the Fourteenth Amendment may be
determinative. See County of Sacramento v. Lewis , 523 U.S.
833, 118 S.Ct. 1708 (1998); Fagan v. City of Vineland, 22
F.3d 1296, 1303 (3d Cir. 1994) (en banc).

Because the Fourth Amendment invokes the less
stringent reasonableness standard, Gottlieb argues that
Carbonara's push amounts to a seizure effectuated by a
government actor who "by means of physical force or show
of authority, . . . in some way restrain[ed] the liberty of a
citizen." Graham, 490 U.S. at 395 n.10. The Fourth
Amendment's prohibition against unreasonable seizures,
however, does not properly cover Gottlieb's alleged injury.
Courts have recognized that public schools are in a"unique
constitutional position," because "[o]nce under the control
of the school, students' movement and location are subject
to the ordering and direction of teachers and
administrators." Wallace by Wallace v. Batavia Sch. Dist.

                               4
101, 68 F.3d 1010, 1013 (7th Cir. 1995); see also Vernonia
Sch. Dist. 47 J v. Acton, 515 U.S. 646, 655, 115 S. Ct.
2386, 2392 (1995) (students are lawfully subject to a level
of restraint that would be unacceptable if "exercised over
free adults."). The Fourth Amendment's "principal concern
. . . is with intrusions on privacy," and therefore when the
infraction deals not "with the initial decision to detain an
accused and the curtailment of liberty that such a decision
necessarily entails, but rather with the conditions of
ongoing custody following such curtailment of liberty," then
the claim invokes principles of substantive due process.
Ingraham, 430 U.S. at 674, 97 S. Ct. at 1401 (citation
omitted). Gottlieb did not experience the type of detention
or physical restraint that we require to effectuate a seizure.
As the District Court for the Middle District of Pennsylvania
correctly stated, the "momentary use of physical force by a
teacher in reaction to a disruptive or unruly student does
not effect a `seizure' of the student under the Fourth
Amendment," and therefore "is a scenario to which the
Fourth Amendment does not textually or historically apply."
Kurilla by Kurilla v. Callahan, 68 F. Supp. 2d 556, 563
(M.D. Pa. 1999).

Gottlieb's action is a claim of excessive force, not of
unreasonable detention. In our leading case reviewing
corporal punishment in public schools under S 1983,
Metzger v. Osbeck, 841 F.2d 518, 520 (3d Cir. 1988), we
did not explicitly adopt the shocks the conscious standard,
but rather did so impliedly, stating that the offending
conduct must be inspired by malice or sadism. This led
Judge Weis to state in his dissent that the majority had
"apparently adopted" the shocks the conscience standard.
Metzger, 841 F.2d at 522 (Weis, J., dissenting). We agree
and take this opportunity to clarify the standard we
adopted in Metzger, applying the Fourteenth Amendment's
shocks the conscience standard to federal claims alleging
the use of excessive force by public school officials. Accord,
Johnson by Johnson v. Newburgh Enlarged Sch. Dist. , 239
F.3d 246 (2d Cir. 2001); Neal by Neal v. Fulton County Bd.
of Educ., 229 F.3d 1069 (11th Cir. 2000); Lillard v. Shelby
County Bd. of Educ., 76 F.3d 716 (6th Cir. 1996); Wise v.
Pea Ridge Sch. Dist., 855 F.2d 560 (6th Cir. 1988); Garcia

                               5
by Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987); Webb v.
McCullough, 828 F.2d 1151 (6th Cir. 1987).

ii) Application of the Shocks the Conscience Standard

The substantive component of the Due Process Clause
"protects individual liberty against `certain government
actions regardless of the fairness of the procedures used to
implement them.' " Collins v. Harker Heights, 503 U.S. 115,
125, 112 S. Ct. 1061, 1068 (1992) (quoting Daniels v.
Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665 (1986)).
"[T]he substantive component of the due process clause is
violated by [state conduct] when it can properly be
characterized as arbitrary, or conscience shocking, in a
constitutional sense." County of Sacramento , 523 U.S. at
847, 118 S. Ct. at 1717 (citation omitted). Thus,"conduct
intended to injure in some way unjustifiable by any
government interest is the sort of official action most likely
to rise to the conscience-shocking level." Id. at 849, 118 S.
Ct. at 1718.

In Metzger, 841 F.2d at 520, we cited Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir. 1973), for the standard to
evaluate excessive force claims:

       In determining whether the constitutional line has
       been crossed, a court must look to such factors as the
       need for the application of force, the relationship
       between the need and the amount of force that was
       used, the extent of injury inflicted, and whether force
       was applied in a good faith effort to maintain or restore
       discipline or maliciously and sadistically for the very
       purpose of causing harm.

The Fourth Circuit refined the Glick criterion in Hall v.
Tawney, 621 F.2d 607, 613 (4th Cir. 1980). Hall now
provides the most commonly cited test for claims of
excessive force in public schools:

       As in the cognate police brutality cases, the
       substantive due process inquiry in school corporal
       punishment cases must be 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

                                6
       of zeal that it amounted to a brutal and inhumane
       abuse of official power literally shocking to the
       conscience. Not every violation of state tort and
       criminal assault laws will be a violation of this
       constitutional right, but some of course may.

Hall, 621 F.2d at 613 (citation omitted).

The Glick and Hall standard has been adopted with slight
variations by several Courts of Appeals. See Johnson, 239
F.3d at 251-52 ("[I]n determining whether the constitutional
line has been crossed," the Court must consider"the need
for the application of force, the relationship between the
need and the amount of force that was used, the extent of
injury inflicted, and whether force was applied in a good
faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm.");
Neal, 229 F.3d at 1075 ( "[E]xcessive corporal punishment
. . . may be actionable under the Due Process Clause when
it is tantamount to arbitrary, egregious, and conscience-
shocking behavior . . . . [T]he plaintiff must allege facts
demonstrating that (1) a school official intentionally used
an amount of force that was obviously excessive under the
circumstances, and (2) the force used presented a
reasonably foreseeable risk of serious bodily injury."); P.B.
v. Koch, 96 F.3d 1298 (9th Cir. 1996); Wise , 855 F.2d at
563 ("[A] substantive due process claim in the context of
disciplinary corporal punishment is to be considered under
the following test: 1) the need for the application of corporal
punishment; 2) the relationship between the need and the
amount of punishment administered; 3) the extent of injury
inflicted; and 4) whether the punishment was administered
in a good faith effort to maintain discipline or maliciously
and sadistically for the very purpose of causing harm.").

To avoid conflating the various elements of the shocks
the conscience test into a vague impressionistic standard,
we analyze its four elements in turn: a) Was there a
pedagogical justification for the use of force?; b) Was the
force utilized excessive to meet the legitimate objective in
this situation?; c) Was the force applied in a good faith
effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm?; and d)
Was there a serious injury?

                               7
The first question is whether there was a pedagogical
justification for Carbonara's use of force. Corporal
punishment in schools typically refers to the application of
physical force by a teacher or administrator to punish a
student for some type of school-related misconduct. See
Ingraham, 430 U.S. at 661, 97 S. Ct. at 1407. The most
common application of physical force involves the formal
administration of paddlings or other predesignated physical
punishment. See Saylor v. Board of Educ., 118 F.3d 507,
511 (6th Cir. 1997); Fee v. Herndon, 900 F.2d 804, 806 (5th
Cir. 1990); Wise, 855 F.2d at 562; Garcia, 817 F.2d at 653;
Hall, 621 F.2d at 609. Informal physical confrontations
have also been considered corporal punishment. See Neal,
229 F.3d at 1060 (coach's striking student in face with a
metal weight and destroying his eye considered corporal
punishment); London v. Directors of DeWitt Pub. Schs., 194
F.3d 873, 875 (8th Cir. 1999) (school official's dragging
student across room and banging student's head against a
metal pole described as corporal punishment); P.B., 96 F.3d
at 1300 (principal's hitting, grabbing, and pushing of
several students actionable as a constitutional violation);
Metzger, 841 F.2d at 518 (school official's placing student
in choke hold and causing student to lose consciousness
and fall to the pavement resulting in a broken nose and
fractured teeth analyzed under corporal punishment
framework). In such cases where a school official grabs a
student to break up a fight, chokes a student when hearing
him curse, or paddles a student for misbehaving, the
reason that the administrator resorts to force is evident. At
the very least, the force must be capable of being construed
as an attempt to serve pedagogical objectives.

Here it is unclear what pedagogical objective Carbonara's
alleged push might have served. Although insubordinate
earlier, Gottlieb stood in Carbonara's doorway obediently.
Gottlieb was informed that she was not allowed in school
until after a parent-teacher conference took place. There
appears at this point to have been no reason for Carbonara
to physically discipline Gottlieb, and he has not offered any
justification for the alleged act. As the Fifth Circuit Court of
Appeals has stated, "[c]orporal punishment rises to the level
of a constitutional deprivation only when it is arbitrary,
capricious, or wholly unrelated to the legitimate state goal

                               8
of maintaining an atmosphere conducive to learning."
Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d 1243,
1246 (5th Cir. 1984). Carbonara has not yet offered any
justification for his use of force, and it is thus possible that
a reasonable jury could find that there was no justifiable
need for any use of force against Gottlieb. Carbonara's
push could be found to be a rash, irrational, and needless
abuse of his authority. Consequently, it is inappropriate to
presume in his favor on this point and in the context of
summary judgment.

The second question is whether the force Carbonara
utilized was excessive to accomplish the legitimate objective
in this situation. Because we have concluded that there
was no need for Carbonara to use force at all, excessivity is
simply not an issue. Carbonara's use of force may not have
been in service of any pedagogical objective, but rather
could have been an unwarranted fit of "rage" (as Gottlieb
described it in her deposition). Hence, summary judgment
is inappropriate on this prong of the test. As the Supreme
Court stated in Sandin v. Connor, "[a]lthough children sent
to public school are lawfully confined to the classroom,
arbitrary corporal punishment represents an invasion of
personal security to which their parents do not consent
when entrusting the educational mission to the State." 515
U.S. 472, 485, 115 S. Ct. 2293, 2300-01 (1995). In this
respect, school officials risk federal constitutional liability
claims if they subject their students to force that does not
serve any appropriate pedagogical objective.

The third question is whether the force applied by
Carbonara "was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very
purpose of causing harm." Metzger, 841 F.2d at 520
(quoting Glick, 481 F.2d at 1033). In essence, we are asked
to examine what animated Carbonara's action or his intent
in acting. There are three possibilities: 1) Carbonara did not
intend to push Gottlieb or cause her injury, and therefore
the contact was accidental; 2) Carbonara intended to push
Gottlieb but not to cause her injury, and therefore the
injury was accidental; 3) Carbonara intended to push
Gottlieb and cause her injury. Because a constitutional
violation will only arise if Carbonara's actions were

                               9
malicious and sadistic, it is the harm, and not the contact,
that must be intended.1 Therefore only the third possibility
can sustain her claim.

In Metzger, we reasoned that the teacher's statement that
he did not intend to harm the student, by itself, was not
enough to establish conclusively that the teacher did not
intend to harm the student by placing him in a choke hold.
Metzger, 841 F.2d at 520-21. We reasoned that the
teacher's position as a physical education instructor and
wrestling coach may make him aware of the risks in
restraining the student. Id. Since the Metzger court found
contradictory evidence of what the teacher intended,
summary judgment was inappropriate on the facts
presented. Here, unlike Metzger, we are faced with a
different scenario because of the slight nature of the push
and Gottlieb's own testimony. First, Carbonara did nothing
more than place his hand on Gottlieb's shoulder and push
her back inches to the door jamb. The push itself was so
minor that even if the injuries she alleges occurred, it
cannot be inferred from the act itself that Carbonara
intended to act maliciously and sadistically so as to
constitute a constitutional violation. A slight push is very
different than the choke hold applied in Metzger . Second, in
her deposition Gottlieb explicitly stated that she believed
that Carbonara did not intend to injure her. (See opinion p.
3, supra).

Thus, Carbonara's conduct, although possibly tortious,
does not give Gottlieb a constitutional cause of action.
Carbonara's placing his hand on a student's shoulders and
moving her mere inches is not "a brutal and inhumane
abuse of official power literally shocking to the conscience."2
_________________________________________________________________

1. The use of the term "sadistic" in this standard is something of a
misnomer. Precedent does not require that the alleged offender take
pleasure or satisfaction from the injury, as the term entails, but rather
only that the offender intended harm. The requirement that the act be
sadistic, therefore, adds nothing to the requirement that it be malicious.
See BLACK'S LAW DICTIONARY 956-58 (6th ed. 1990).

2. We base our conclusion on Carbonara's lack of intent to injure
Gottlieb, and therefore do not need to determine whether the alleged
injury was sufficient to support a constitutional claim.

                               10
Hall v. Tawney, 621 F.2d at 613. Applying the summary
judgment standard, we conclude that no reasonable jury
could find that Carbonara intended to harm Gottlieb.
Therefore, his actions do not rise to the level of a
constitutional violation.

B. Gottlieb's S 1983 Claim Against the School District

Gottlieb claims that Carbonara's previous altercation with
an opposing football coach was handled by school
administration in such a way as to constitute deliberate
indifference to physical abuse of students generally, and
created a policy, practice, or custom that caused her injury
specifically. We do not agree.

We have recognized that a municipality will be liable for
the constitutional violations of a state actor if it acts "with
deliberate indifference to the consequences [and]
established and maintained a policy, practice or custom
which directly caused constitutional harm." Stoneking v.
Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)
(emphasis added). Gottlieb has failed to allege a direct
casual connection between any such practice and her
injury. See Losch v. Borough of Parkesburg, Pa. , 736 F.2d
903 (3d Cir. 1984). This causal connection can be
established by alleging "that policymakers were aware of
similar conduct in the past, but failed to take precautions
against future violations, and that this failure, at least in
part, led to their injury." Id. at 910. The previous conduct
is not sufficiently similar to draw a direct causal connection
to Gottlieb's injury.

Because Gottlieb has not alleged sufficient facts to
establish causation, we need not consider whether the
School District acted with deliberate indifference and
established and maintained an unconstitutional policy,
practice, or custom. The District Court therefore did not err
in granting summary judgment against Gottlieb'sS 1983
claim against the School District.

III. CONCLUSION

In sum, we conclude that there are no material issues of
fact that would preclude granting summary judgment in

                               11
favor of Carbonara, and that the District Court properly
concluded that Gottlieb's pleading was insufficient to
establish a cause of action against the School District. We
will affirm the summary judgment in all respects.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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