in sixty six twenty nine allen james howard sr individually and his next friend of a minor child at all versus timothy y can stain arguments that exceed fifteen minutes per side mr bennett for the over questions before the court this morning or whether the plaintiff's complaint states a claim for supervisory liability under forty two u s c section one hundred three and whether the complaint also states a claim under forty two u s c section one hundred eighty three for a failure to train that rises to the level of a constitutional violation we respectfully submit that the district court erred in concluding that the police complaint did in fact state claims for relief as scores where in order to establish a claim for supervisory liability under forty two u s c section one hundred eighty three the plaintiff's completeness set forth specific factual allegations not conclusion restatements of law not conclusion re claims that provide no guidance but rather specific factual allegations that the individual supervisor was aware of specific facts of constitutional violations and not only that he was aware of violations but that these violations were substantially likely to occur again in the future such that his failure to act not only makes him conduct must itself rise to the level of violence of a violation and so the level of knowledge that the supervisor must have is very very high and so we look at in reading the complaint difficultly looking at paragraphs nineteen to thirty one i'm a little bit mystified by what you continue to insist as is missing as far as specific information i mean if you look at paragraph twenty eight parents of student peer mentors reported claims of mistreatment in her abuse to the defendant and paragraph thirty this is the incident where she allegedly grabbed and shook mediately informed defend it we can steen of continued and unjustified mistreatment and abuse how much more specific does it need to get when you're on it that really is the heart of the question talisman that is that triggers knowledge of a constitutional violation or is that as we continue to nonspecific claim and i think this court's prior i don't get that you have to say that sure well let's take the hype a hypothetical situation rather saying that you're not saying that child abuse is ok i'm not saying it's always ok if there was child abuse with that in a custody all setting in a school would that constitute a constitutional violation not necessarily because it would it would have to rise to the level of violating a child's right to bodily integrity and not every abusive situation first of all is reportable abuse under state laws nor is it necessarily a violation of a child's right to bodily integrity and probably the best case in that what your honor is actually discoursed decision and say can versus summer county board of education seven twenty six f subsecond actually it's a district court case but it cites cases from this court eight sixty eight that get let me help you out here so so you're not really saying that the complaint doesn't allege abuse it does that right absolutely so your your that line will your honor are there certain magic words that you have to say or there are certain incidents that you have to mention that they fail to hear well under under the it ball standard as as applied to t constitutional violation there has to be a specific enough allegation that what the the perpetrator did was itself a violation of a child's right to bodily integrity  yelling at a child is not a constitutional violation and i believe the plaintiffs counsel will agree with me on that point all right how about this one paragraph thirty three physically dragging children by their extremities and such a way that the children's heads and or bodies would strike objects walls on the ground violently throwing or pushing children under corners or walls so on and so forth that's not enough your honor that is absolutely enough but but but the problem here is there is nothing in paragraph thirty three  thirty four this suggests the devic that knew about that what we know for certain is that the allegations against rebecca shoemaker in thirty three and thirty four that she dragged the kids that she banged her heads against the wall that she used excessive force on a scale that is just a point in clearly violates the children's rights to bodily integrity there's no question those allegations state a claim for constitutional make this a hypothetical so we have to worry about this case in the hypothetical complaints about abuse are made to a principle now i'm not saying constitutional abuse had the princip investigated the principle and i have that it would have discovered that that abuse rose to the level of a constitutional violation does that then in my head for the tickle state a claim if the principal dimension principal doesn't investigate had the principal investigated the principal would have clearly and easily learned it was of a constitutional dimension i think this you get qualified immunity in that case i think this court's answer that question in  they were actually aware that the department human services was investigating nine complaints of child sex abuse by the coach in that case they were actually aware that four of those complaints were found it they suspended the coach they did not rehire him for the following year but the subsequent year they did rehire him and well they put some systems in place they did not prevent him from having an unmonitored conduct with minor children in that situation this court still granted the individual's sentence qualified immunity saying that nor did they arthur rise approve or knowingly acquiesce in davis is unconstitutional conduct they had no knowledge constructive or otherwise that davis was not using it was abusing that point and so we get to this we get really to the core of the question is abuse is even the word physical abuse automatically triggers notice that a constitutional right is being violated in clearly doesn't matter in our analysis while we're discussing this that there are special needs kids that are involved some of which can really take care of themselves now your honor it doesn't matter because the issue you know you're making a great argument that that mr wiggins teen was negligent you could even make the argument that his conduct was was negligent to the point of being unprofessional such that it might affect his licensure but the problem here is under saussy of the cats we have to ask the question did mr wigan steen actually know ahead of time that there were there were ongoing constitutional violations and again the word abuse is one of those what it is is not a term of art let's suppose we have a coach a parent complains the coach is abusive what do you mean the coach is abusive he yells at my kids well pretty clearly simply yelling does not rise to the level of a constitutional violation it's not even reportable under state law well not on top of the not only that but but in addition to yelling at my kids this coach is making the kids run and run a lot well we would all agree that a parent legitimity believe would believe that the coach is being abusive however we would not agree that that would be a reportable offense under most state laws and it certainly wouldn't rise to the level of a constitutional violation if again to your point judge mckee the question here of whether the tripwire has been hit whether or whether there is notice of a constitutional violation comes into play with whether the abuse is such a of such a nature that it indicates that there's been a violation of a child's right to bodily integrity that is the key and so judge mckee to answer your question again if you look through the complaint and you look to see if there's a specific factual allegation that satisfies twamley in that ball and raises the question of whether we can sting knew that these children's rights to bodily integrity w being violated prior to thirty three and thirty four in the complaint the answer is no as a matter of fact they're saying that reports to wigan steen have to be sufficient for wiggins steen to know a believe understand that had already risen to the level of a constitutional violation until that he doesn't have to do anything he does constitutional duty to do anything your honor because again for supervisory liability to occur it's not enough that that there is a concern about shoemakers performance there has to be notice that there is a constitutional violation that is substantially likely to occur because that is what triggers his obligation though then you're saying that these different reports are let us say o discussions with the teacher of the year and the peer mentors and the parents he could have believed that they simply weren't that bad and therefore he didn't constitutionally need to do anything is that he didn't get rest of your argument honor he didn't constitutionally need to do something you know do we can see that under state law he had an obligation to to investigate yes we do but that is a different question from whether his failure to investigate makes him effectively participant and does that not make it at least given from my reading of the record that there were a lot of reports of a lot of we'll call it bad stuff factual matter as to how bad the bad stuff was i mean we have a lot of these qualified immunity cases where we just say based on one side's facts it's ok based on the other facts it's a constitutional violation to go to trial so here given all of this do we say the degreed of the reports is a factual matter why why would you not say that if the first your honour's and those much time has expired may have a moment to answer the question that thinks your honor really the meat of your inquiry is is there ever a situation in which the weight of non specific claims none of which individually rise to the level of a constitutional is there ever a situation in which the weight of these nonspecific non fourteenth amendment invoking charges rises to the level that it pushes things over to create a constitutional question we would say no simply because under sarsi v katz the standard is not where there is smoke there might be fire the standard is whether a reasonable actor in the shoes of the defendant would have known that he had a constitutional duty to do something different and because jurisprudence is predicated upon specific factual allegations specifically those are specific things for example as i understand it the mother of a witness shoemaker grab a head and shake quite screaming out or you just say well since that incident itself might not be enough then you don't have to teacher had taken the soiled pants and made the child smell the child in feces the court said clearly and inappropriate clearly offensive clearly problematic but it does not rise to the level of violating the child's right to bodily integrity so it so that incident did not trigger constitutional concerns all sorts of other concerns but not constitutional concerns and so your honor to to sum up i would i would make the case because i believe that's what the law does that this one incident that set forth in paragraph thirty is not sufficient to have triggered a constitutional  should have done something more absolutely would have been a good thing for him to have done something more clearly will we will the defendants have a problem under that is a government tort liability act no question but does that one specific allegation the only specific allegation of what we can stay new does that rise the level of a constitutional violation we  please the court john cocke from the tennessee for i think what we have here we're almost bulletin hairs or at least the pellets trying to split hairs on the definition of physical abuse and this is a motion to dismiss appellate keep referring to certain cases but those are the complaint has a timeline it starts out at the very beginning when this teacher's assistant was hired and obviously there was a reprimand when she was a teacher's assistant at the very beginning at a different school in that paragraph nineteen you start from there and she's reprimanded basically because she can't handle fresh writing situations she can't fall of supervisors directions she doesn't have a good report with kids and parents that starts it off now is that alone absolutely not we wouldn't be here but then that leads into she was transferred t hollis middle school with the school this this happened that paragraph twenty that point time we can steam and apologize on of that we can stay and we're going stein we can stay we can steam except the transfer as the principal and under the statutory duty he has the right to assign specific duties to teachers assistants and what does he do he is science or as the direct assistant to l r and there are that's where it starts because this teacher's assistant had absolutely zero training or education with special needs  zero that's stated throughout the complaint you get the paragraph twenty two and i think that's where it really starts and is sufficient even defeat this motion if you look at paragraph twenty two it says the  schumaker and base that goes on that they did nothing that starts it in and i guess what parents try to say you need to be more specific there well we're dealing with special needs children the allegation is physical abuse to me that is not a conclusory statement hey when you're dealing with special needs students federal courts have said that said in a study in my brief there is a heightened duty you take that alone and there's physical abuse that principal is on notice he has knowledge it's physical abuse investigate it he does nothing but we don't stop there you go on you go on paragraph twenty twenty three this is where the recess goes noticed physical problems with the bruising on the on the child's knees they also noticed and discovered the child had been isolated for rooms because shoemaker doesn't like to take her to the restroom she's will we should wheelchair bound and they threaten legal action so right there mr principal mr we can start what do you do he reluctantly he reluctantly agrees put a new direct assistant and where does it stop he doesn't invest again he doesn't offer more training he doesn't do anything except promote her he promotes or to a cd see a classroom full of special needs children so now you take these and these bricks and you just piling up on top of each other and it's clear a reasonable person in the situation would know that there are strong likelihood when a teacher's assistant has been reported to have physical abuse a one child there's a strong likelihood that when you promote her and don't train her in place or in a classroom full of frustrating situations with special needs children what's going to happen is there a problem that as i see looking at paragraph twenty three we can start and it's not mentioned specifically but it's defendants are the group when one defends me implore all obviously he's in control of it you lead on though after the complaint goes on it's a after notion is and threatening legal legal action she is placed into the c d c a classroom not that point in time on paragraph twenty five and twenty six this is the teacher of the year the finally resigned so shoemaker was in there in the in the c classroom just for one year under a called the teacher of the year the teacher of the year resigned she has to exit interview she specifically tells them we can stop time that schumaker need to be removed immediately she mistreats students made we can stand promise that the kids would not be hurt that's in the complaint an allegation he actively made representation that he would protect the children that's those are allegation so we get back to this is a motion to dismiss standard have asserted another allegations the make a plausible inference of wrongdoing well if i understand what pellets say and what i haven't because you didn't really go into what physical abuse of a minor child that is nonverbal and is a special needs you didn't add more well on a motion to dismiss smith you can take an inference that physical abuse of  special needs child just those words alone is a constitutional violation you should have done something the fact that as alleged showed that witnessed on he flat out did nothing what then goes on after that after the teacher of the year there are continued reports of abuse it doesn't stop paragraph twenty eight parents i mean i'm sorry even before that you have the peer mentors reporting to wigan ston of abuse paragraph twenty eight parents of the p mentors still nothing is done no investigation no training then on paragraph thirty miss howard sees what is being done to her child by the shaking and yelling that is just another brick in the wall so to speak the reports of complaint you have other parents you have peers didn't you have parents peer students you have teachers of the year and then you have miss miss howard what we had and you lead to is then finally into the timber of two thousand and fourteen you have anonymous letter saying there has been systemic and physical abuse again physical abuse by shoemaker for an entire year funding that none is letter that was given to issue here today is under supervisory liability and i understand that's not vicarious and i'm not trying to get vicarious liability i'm not trying to get to negligence what we're saying here is what this court has said is that it must be some type of active unconstitutional behavior and to meet there are certain ways to get to that active definition in that is did wittgenstein in a minimum implicitly authorized or prove other issue makers conduct and to get there and i'll cite don't be clayborne for this point and over claiborne stated again that was a motion for summary judgment that on this law here it says the plaintiff must show that in light of the information possessed by the defendant that the teacher who engaged in the abuse showed a strong likelihood that she would attempt to abuse other students well you've got physical abuse allegations over and over and over again and that strong likelihood factor is what get you above the negligence and that gets you into the constitutional violation but you have you have that with all that all of the notices and knowledge it's clearly a reasonable inference that we can sense failure to investigate discipline at least implicitly infers his approval or that he condone this at least for a motion to dismiss  you believe it's the four of the case but this court said liability attaches only a constitutional violation as part of a pattern of misconduct or where there is essentially a complete failure to train the police force or training that is so reckless or grossly negligent that that future police misconduct is almost inevitable or would properly be characterized as a stain truly certain to occur that almost kind of goes back with the strong likelihood well so you have two parts there you're sort of veering off now into into failure to train and it seems to me an element of failure to train as is always including the concept that that training would have made a difference not it's hard to believe that if this woman really did all of the things that she is alleged to have done with respect to these kids and i understand she pled guilty to something that having a training session saying you can't shake kids you can drag  n by their extremities it is hard to believe that training would have made a difference as to this individual's propensities what you have is basically excessive force she already has problems handling frustrating does your saying when she knew what a continuum of force was that you could use in a school custodial setting then maybe she wouldn't of abuse them as at the idea well tennessee has specific statutes dealing with special needs children and restraints for one reason when there are certain emergency situations would because you had different difficult situations with special needs children and so you it takes a level of patience and so let me as i stated in my brief what part of training is the weed out so to speak people that can't do not have that special skill to be able to have the patience to deal with special needs and also have the heart but you also have a special there is special training as i believe it's forty nine ten thirteen no one obviously dealing with special needs and restraints what's your best case for training being a weed out exorcis common sense and the best case that obviously for any type of training you're going to you're going to see whether the people person has patience or not to this type situation i can't cite a case right off hand for that weed out but i suppose training show should give people coping skills give the teachers skills as to how to defuse a situation if a child is misbehaving for instance rather than punishing the child to redirect  more acceptable activity things like that absolutely there's a reason why we have training it's almost like the political isa excessive force it's the same thing there are you know the fact that you cross that line and continue then you know there's training so you don't cross that line in this situation dealing with something as delicate and as as special needs children there's those reasons why special needs teachers go to special special training then you have these statutes that you get certified for but not restraints for situation i mean best answers it's motion to dismiss stage it is it is and that's why you get lots of the cases and all of the points the panel is made all come from motions for summary judgment which down the road i know if it if your honour's up told this uphold the district court that i'm going to face and i'm going to have to prove and get over but this point in time i believe you take it all the inferences in the planes favor memphis i think is more it dealt with the motion to dismiss and in that case it dealt with the sheriff over in memphis dealing with the failure investigate there was there was officer shootings and so forth and did he take seriously excessive force allegations and there were still you trained if you take the facts that case in the allegations contained in that complaint they fit into this case now they penn state well in that one and their reply breeze stated well there was  fifty four shootings and eighteen this well they have those are prior notices of potential excessive claims excessive force where in this case there are allegations in the complaint that there was repeated claims of physical abuse so for the motion to dismiss standard the patrol's case i think fits this one pretty fairly and unless you want to have any further questions thank you established is whether it would be clear to a reasonable officer that his conduct was locked was unlawful in the situation he confronted and so what we have to ask is does the police complaint a right to set out more th harmed me and so let's change the phrase physical abuse throughout the complaint to violation of bodily integrity which changed that throughout because i think the case was clear physical abuse standing alone does not violate the constitution in less it actually implicates the question of someone's bodily integrity if you just think you're you're just going down the the really dangerous path here on behalf of schools where you seem really want to say that if parents come to a principal and say that my child has been physically abused that if that's all they say the principal can say well not enough i don't have to investigate and  not going to be able to be held deliberately indifferent because you didn't tell me enough specifics for me to know that this rises to the level of a constitutional violation is that really what you want a court to say you are perhaps a i've not been clear want i think you've been really clear i'm just asking you really want to say what i just said well your honor what what i'm saying is there's a line of demarcation between abuse that rises the level of violating the constitution which it absolutely schools want their officers to to investigate that as compared to allegations that implicate a duty to report under tennessee law implicate a duty to investigate under tennessee law so suppose that the allegation in the complaint question about that about it just goes and says he's hitting my child doesn't say with a with an open fest a board you never hit special special needs children that is absolutely a constitutional violation our problem your honour's is if you look throughout this they have simply said they haven't even said that the abuse right the abuse that we can sting you of rises to the level of violating bodily integrity if and suggests that there is a problem because you told us just moments ago that you never hit especially never hit especially stop well in so your we get we look at the sake in case we were the the district court so it's a district court case but they aren't but i believe that the argument though is it is still very persuasive in that you have a situation where a child is being mistreated but it doesn't rise to the level of violating the child's bodily integrity and so you have to ask the question if taking a child's face in forcefully and yelling at the child to get the child's attention does that necessarily implicate a constitutional right in the us or is as to shoemaker yes now if we have repeated situations potential in the right but not as to where you are now i would say that if what we're talking about is a repeated conduct of where she is shaking it up repeatedly and she's using that as a substitute for disciplinary protocols then i think if we can steam is aware that over time it is alleged he is aware that over time then at some level we absolutely can see it triggers constitutional problems but that's not in the complaint