                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2008

Patrick v. Great Valley Sch
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4270




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 06-4270
                                   _____________

      JEAN PATRICK, IN HER OWN RIGHT and ON BEHALF OF STEVEN A.
                         ROSENBERG, A MINOR,

                                          Appellants

                                           v.

 GREAT VALLEY SCHOOL DISTRICT, OWEN BROWN, LEONARD LEVI, CHRIS
                 TRICKETT, and JOHN McDOWELL,

                                          Appellees

                                     __________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 04-cv-5934)
                    District Judge: Honorable Lawrence F. Stengel
                                     ___________

                               Argued March 26, 2008
                                   ___________

                Before: McKee, Rendell, and Tashima,* Circuit Judges




      *
              Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
                                  Filed: October 9, 2008
                                      ___________
                                         OPINION
                                      ___________

TASHIMA, Circuit Judge:

       Jean Patrick (“Patrick”) and her son Steven Rosenberg (“Rosenberg”) (together,

“Plaintiffs”) appeal the District Court’s grant of summary judgment in favor of the Great

Valley School District (“Great Valley”) and individual Great Valley employees and/or

agents Owen Brown ( “Coach Brown”), Leonard Levi, Chris Trickett and John

McDowell, on Plaintiffs’ claims that Defendants deprived Rosenberg of a constitutionally

protected liberty interest without due process of law when Rosenberg suffered injuries

during a junior high school wrestling practice.1 We have jurisdiction to review the

District Court’s decision under 28 U.S.C. § 1291, and will affirm the grant of summary

judgement as to Great Valley, and reverse and remand for further proceedings consistent

with this opinion as to Coach Brown’s personal liability.

                                             I

       Because we write for the parties, we recite only those facts necessary to our

analysis of the issues presented on appeal. Our review of a grant of summary judgment is



       1
              On appeal, Plaintiffs do not contest the District Court’s dismissal of
Defendants Levi, Trickett, and McDowell. We therefore deem that issue waived and do
not consider it.

                                            -2-
plenary and “we must grant all reasonable inferences from the evidence to the non-

moving party.” Knabe v. Boury Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997). The moving

party carries the burden of demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986).

       Plaintiffs present evidence that Coach Brown directed Rosenberg to “live wrestle”

with a teammate that weighed roughly ninety pounds more than him – Rosenberg

weighed 152 pounds and his heavier teammate weighed 240 pounds – at a junior high

wrestling practice on December 27, 2002.2 Live wrestling is, essentially, a simulation of

actual competitive match conditions with both wrestlers expending their utmost efforts.

Pennsylvania Interscholastic Athletic Association (“PIAA”) weight class

guidelines–which govern interscholastic matches but not practices–require wrestlers to

compete against opponents in their own weight class or one class above. When

Rosenberg’s injuries occurred, Coach Brown had paired him with a teammate three PIAA

weight classes above his own. Rosenberg suffered injuries to his right leg when the

heavier wrestler collapsed on top of him.

       Experienced wrestling coach and former Olympian Ken Chertow offered expert



       2
             Defendants deny that the injuries occurred in the course of live wrestling; at
the summary judgment stage, however, we must construe the evidence in favor of the
non-moving party. Ideal Daily Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 743 (3d Cir.
1996).

                                            -3-
testimony that the weight discrepancy led to Rosenberg’s injuries, and that permitting two

inexperienced wrestlers with a ninety-pound weigh differential to live wrestle represented

a dangerous coaching practice. On appeal, Plaintiffs argue that record evidence construed

in their favor would permit a rational jury to conclude that Coach Brown’s conduct

satisfies the elements of the state-created danger doctrine, and therefore gives rise to

liability under 28 U.S.C. § 1983. See Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir.

1996) (recognizing the state-created danger cause of action).

       For personal liability to attach, a § 1983 plaintiff must show that an “official,

acting under color of state law, caused a deprivation of a federal right.” Kentucky v.

Graham, 473 U.S. 159, 166 (1985). To prevail on a state-created danger claim in this

Circuit, a plaintiff must prove four elements: (1) the harm to the plaintiff was foreseeable

and fairly direct; (2) a state actor acted with a degree of culpability that shocks the

conscience; (3) a relationship between the state and the plaintiff existed such that the

plaintiff was a foreseeable victim of the defendant’s acts; and (4) a state actor

affirmatively used his or her authority in a way that created a danger to the citizen or that

rendered the citizen more vulnerable to danger than had the state not acted at all. Sanford

v. Stiles, 456 F.3d 298, 304-05 (3d Cir. 2006). The state-created danger doctrine stands

as an exception to the general rule that, under the Due Process Clause, the state does not

owe its citizens an affirmative duty to protect them from harms caused by other private


                                              -4-
citizens. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 198-

200 (1989).

       The District Court determined that Plaintiffs failed to establish a triable issue of

material fact on the question of whether Coach Brown’s level of culpability shocked the

conscience. The Court explained that, while Coach Brown’s decision to pair Rosenberg

with a much heavier wrestler triggered certain obvious and irreducible risks, he did not

exhibit a callous or willful indifference to those risks, and was thus not culpable in the

manner that the state-created danger doctrine requires.

       Whether a state actor’s conduct shocks the conscience depends on the particular

factual circumstances, and cannot be determined by reference to an inflexible standard.

See County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998); Miller v. City of

Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999). Courts applying the shocks-the-

conscience standard have often looked to whether the defendant state actor exhibited

deliberate indifference to a plaintiff’s constitutional rights. See Morse v. Lower Merion

Sch. Dist., 132 F.3d 902, 908 (3d. Cir. 1997) (quoting Kneipp, 95 F.3d at 1208). In

“hyperpressurized” circumstances where split second decisions are required–a high speed

car chase for example–an intent to cause harm may be required for a state actor’s conduct

to shock the conscience. Sanford, 456 F.3d at 308. However, in circumstances where the

state actor had ample time for deliberation before engaging in the allegedly


                                             -5-
unconstitutional conduct, the appropriate standard will be deliberate indifference. See

Phillips v. County of Allegheny, 515 F.3d 224, 240 (3d Cir. 2008) (noting that where state

officials have sufficient time to make unhurried judgments “deliberate indifference is

sufficient to support an allegation of culpability”). The Sanford Court also recognized an

intermediate gross negligence or arbitrariness standard, applicable where the state actor

has more than a “split-second” to make a decision, but less than enough time to make an

“unhurried judgment.” See Sanford, 456 F.3d at 306.

       Coach Brown’s decision to match Rosenberg with a much heavier teammate for

live wrestling did not occur in a time-constrained or “hyperpressurized” environment, and

thus culpability should be assessed under the deliberate indifference standard. According

to wrestling expert Ken Chertow’s testimony, the pairing of Rosenberg, a young and

inexperienced wrestler, with a much heavier partner for live wrestling amounted to an

unreasonably dangerous practice. Plaintiffs have also introduced evidence suggesting

that, despite the risks, Coach Brown matched Rosenberg with his heavier teammate

because he wanted to provide the heavier wrestler with a practice partner and there were

no wrestlers of comparable weight present at the practice at issue. Finally, Plaintiffs

presented evidence that Coach Brown engaged in similar conduct on more than one

occasion, providing, at the very least, circumstantial evidence of deliberate indifference.

Cf. Beck v. City of Pittsburgh, 89 F.3d 966, 975 (3d Cir. 1996) (holding that evidence of


                                            -6-
acquiescence to repeated instances of misconduct may be sufficient to prove deliberate

indifference).3

       Without deciding the issue, we hold that a rational jury could find that Coach

Brown’s conduct exhibited a level of culpability that shocks the conscience. Because the

District Court rested its holding solely on Plaintiffs’ failure to satisfy the culpability

element of their state-created danger claim, we need not reach the question of whether

Plaintiffs have raised a genuine issue of material fact with respect to the remaining three

elements.4

                                               II

       Plaintiffs contend that Great Valley is liable for the alleged deprivation of

Rosenberg’s Fourteenth Amendment rights, because Coach Brown’s conduct conformed

to an official school district policy or custom. See Monell v. New York City Dep’t of Soc.

Servs., 436 U.S. 658, 690-91 (1978). Municipal employers are not vicariously liable for




       3
        We note that this Court has not yet clarified whether actual knowledge of a risk is
required to establish deliberate indifference in a state-created danger claim. See Sanford,
456 F.3d at 309 n.13 (noting a circuit split on the question and leaving its resolution for
“another day”).
       4
        Defendants contend that Coach Brown’s conduct, even if so reckless as to shock
the conscience, was not the proximate cause of Plaintiffs’ injuries because the harm
would have occurred even if Rosenberg had been matched with a lighter wrestler. We
conclude that Plaintiffs have presented a material issue of fact concerning whether the
weight discrepancy was a direct and foreseeable cause of Plaintiffs’ injuries.

                                              -7-
all constitutional violations that their employees commit. Id. at 694. Under Monell and

its progeny, municipal liability will attach only where a plaintiff establishes that an

official policy or custom served as a proximate cause of the asserted constitutional

deprivation. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).

       Official policy is made when a “decisionmaker possess[ing] final authority to

establish municipal policy with respect to the action issues an official proclamation,

policy, or edict.” Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990). Courts

look to state law to identify who possesses final policymaking authority. See City of St.

Louis v. Praprotnik, 485 U.S. 112, 124 (1988). Alternatively, municipal liability for an

unofficial custom will attach when, though not authorized by law, the challenged

practices are “so permanent and well-settled" as to be tantamount to law. Id. (quoting

Monell, 436 U.S. at 691).

       Plaintiffs do not allege the existence of an official school board policy permitting

junior high wrestlers of great weight discrepancies to live wrestle in practice situations.5


       5
         At oral argument, Plaintiffs’ counsel pointed to Great Valley’s assertion that the
school district maintained an “unwritten custom” of adhering to PIAA weight class
guidelines for live wrestling in practice situations to underscore the obvious risks Coach
Brown ignored in matching Rosenberg with his heavier teammate. (Appellees’ Br. at 8).
Plaintiffs’ argument proves too much: the existence of an informal policy of complying
with PIAA rules during practice reveals that dramatic weight mis-matches were not in
fact the school district’s informal custom. See Andrews, 895 F.2d at 1481 (“When an
official's discretionary decisions are constrained by policies not of that official's making,
                                                                               (continued...)

                                             -8-
Moreover, state law allocates final policymaking authority for the management,

supervision, control or prohibition of exercise, athletics or games of any kind to the Great

Valley School Board, not to Coach Brown. See 24 Pa. Cons. Stat. § 5-511(a). Thus, to

survive Great Valley’s summary judgement motion, Plaintiffs must raise a material issue

of fact concerning the existence of an unofficial custom that is so pervasive as to be

tantamount to law. See Andrews, 895 F.2d at 1480. A pervasive custom can be

established by way of evidence that the relevant policymaking authorities knew of and

acquiesced to the challenged practice. See Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d

Cir. 1989).

       Plaintiffs offer no evidence that Great Valley officials imbued with final

policymaking authority knew of, or had any reason to know of, Coach Brown’s alleged

practice of matching lighter wrestlers with much heavier teammates during practice.

Moreover, Plaintiffs’ evidence that Coach Brown paired Rosenberg with heavier

wrestlers on three or more occasions is not sufficient to establish the existence of an

unofficial custom so pervasive so as to carry the force of law. Without additional

evidence suggesting that gross weight mis-matches constituted Great Valley’s policy,

adopted by an official with final policymaking authority or, in the alternative, that such


       5
           (...continued)
those policies, rather than the subordinate's departures from them, are the act of the
municipality.”).

                                             -9-
weight mis-matches were so pervasive as to constitute the school district’s unofficial

custom, Great Valley cannot be held liable for any deprivation of Plaintiffs’ constitutional

rights stemming from Coach Brown’s conduct.

       For the foregoing reasons, we will AFFIRM the judgment of the District Court as

to defendant Great Valley School District, and REVERSE and REMAND as to defendant

Owen Brown for further proceedings consistent with this opinion. Each party shall bear

her, his, or its own costs on appeal.




                                           -10-
