* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED

November 16, 2004

Charles R. Fulbruge III Clerk REVISED DECEMBER 6, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30967

CATHY FLORES, ON BEHALF OF KEVIN FLORES

Plaintiff - Appellant

versus

SCHOOL BOARD OF DESOTO PARISH; WALTER LEE, individually and as Superintendent of DeSoto Parish School Board; RONNIE LAND, individually and as emplo yee of the DeSoto Parish School Board;

DIANE TROQUILLE, individually and as employee of the DeSoto Parish

School Board; CHARLES HAZARD, individually and as employee of DeSoto Parish School Board; CLINTON WYSINGER, individually and as employee of the DeSoto Parish School Board; COREGIS INSURANCE CO

Defendants - Appellees

Appeal from the United States District Court
for the Western District of Louisiana

(No. 02CV1918)

Before SMITH, WIENER, and PICKERING, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Cathy Flores brought this action on behalf

of her son, Kevin, a fifteen-year-old special education student at

DeSoto [Parish] High School, against Defendants-Appellees

(collectively “defendants”). Plaintiff appeals the district

court’s grant of defendants’ Rule 12(b)(6) motion to dismiss and1 As the district court dismissed plaintiff’s complaint for

failure to state a claim under F ED

. R. C IV

. P. 12(b)(6), we accept as true the facts pleaded by the plaintiff. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 312- 13 n.6 (5th Cir. 2002).

2 its denial of her m otions for (1) costs and attorney fees, (2)

leav e to file a second amended complaint, (3) a pre-trial

scheduling conferen ce, and (4) Rule 11 sanctions against defense

counsel. We affirm.

I. FACTS AND PROCEEDINGS 1

While serving detention for allegedly disobeying a teacher,

Kevin was released temporarily to attend a school assembly. After

t he assembly, Kevin visited the restroom before returning to

detention. On Kevin’s return, a teacher/coach, Clinton Wysinger,

accused him of trying to skip det ention, which Kevin denied.

Wysinger then ordered Kevin to eat his lunch in the detention room.

Kevin “questioned” Wysinger’s order, but denies that he did so in

a disruptive or unruly manner. Kevin’s questioning of the order

angered Wysinger.

After ordering the other students out of the room, Wysinger

took off his tie, rolled up his sleeves, and physically threatened

Kevin. When Kevin refused to fight Wysinger, he ordered Kevin to

stand up, threw him against the wall, placed his hands around

Kevin’s neck, and began to choke him while threatening further

bodily harm. After several seconds, Wysinger momentarily released

Kevin but then pushed him back against the wall, bruising his3

shoulder. After directing Kevin to sit down again, Wysinger put on

his tie, buttoned his sleeves, and instructed Kevin not to tell

anyone about the incident because “no one would believe a sorry

sack of shit .” According to Kevin, Wysinger’s use of force was

neither in response to any disruptive behavior by Kevin nor in

furtherance of any pedagogica l purpose, but was inflicted

maliciously with intent to cause harm solely because Kevin had

questioned the order to eat his lunch in the detention room.

When the other students returned to t he room, they noticed

that Kevin’s face was red and that he was having trouble breathing.

Kevin requested permission to go to the principal’s office, but

Wysinger refused. Some of Kevin’s classmates used their cell

phones to call Kevin’s mother, who in turn called 911 and Kevin’s

father.

Kevin’s father and a sheriff’s deputy met at the school later

that day. When they inquired of Wysinger and another teacher,

Charles Hazard, both denied that the earlier incident had occurred.

The next morning, Kevin ’s mother took him to see a doctor, who

referred Kevin to a throat specialist. The doctors found a bruise

on Kevin’s shoulder but no harm to his throat.

Principal Diane Troquille convened a parent/teacher conference

to address Kevin’s accusations against Wysinger. Troquille warned

Kevin to forget about the incident, told him that he had a week to

think it over, and volunteered that Wysinger could bench press 400

pounds. Kevin requested permission to present defense testimony4

from the students who had called his mother, but Troquille denied

the request. When Kevin refused to retract his charges, the

principal recommended that he be expelled.

Ronnie Land, the schoo l’s Director of Child Welfare and

Attendance, presided over Kevin’s exp ulsion hearing. The

prosecutor was Charles Hazard, the teacher who, with Wysinger, had

earlier denied that the incident had occurred. Land would not

allow Kevin to present witnesses on his own behalf, but permitted

Hazard to do so. Land ruled that Kevin must choose between being

expelled or attending the Mansfie ld Alternative School for a

minimum of eighteen weeks. Kevin chose the alternative school, and

this litigation ensued.

Flores filed her original comp laint in September of 2002,

requested and received leave to amend, and later filed an amended

complaint. Defendants responded by filing a motion to dismiss

under Fed. Rule Civ. Proc. 12(b)(1), (5) and (6). In his Report

and Recommendation, the magistrate judge proposed that the district

court grant defendants’ motion to dismiss all of plaintiff’s

claims. The District Court accepted that recommendation and

entered judgment (1) dismissing with prejudice plaintiff’s federal

constitutional claims, (2) dismissing without prejudice plaintiff’s

Individuals with Disabilities Education Act (“IDEA”) claims for

failure to exhaust administrative remedies, and (3) dismissing

witho ut prejudice plaintiff’s state law claims under 28 U.S.C. §

1367. Plaintiff timely filed a notice of appeal, challenging both2 Plaintiff filed a lengthy appellate brief in which she

challenges each and every ruling made in the district court. Those of plaintiff’s claims that we do not address in this opinion are without merit, and the district court’s rulings complained of by plaintiff are affirmed.

3 Watkins v. Fordice , 7 F.3d 453, 457 (5th Cir. 1993).

5 the form of defendants’ motions under Rule 7 and the district

court’s disposition of the action.

Plaintiff also filed a mo tion for costs and attorney’s fees

under Fed. Rule of Civ. Proc. 4(d)(2), including a claim for the

costs of formal service of process on t he individual defendants,

charging that they had refused to agree to waive formal service.

Defendants objected to plaintiff’s motions because she had not

properly executed requests for waiver under Rule 4. Agreeing with

defendants, the magistrate judge denied plaintiff’s motion, and his

order was sustained by the district court. Plaintiff appeals this

ruling as well.

After the magistrate judge promulgated his Report and

Recommendation, plaintiff filed motions to amend her complaint and

for a pretrial conference. Both motions were denied by the

magistrate judge. Plaintiff did not appeal the denials of these

orders to the district court but has appealed them to us.

II. ANALYSIS 2

A. Motion for Costs

We review a district court’s denial of a motion for attorney

fees and costs for abuse of discretion. 3 The magis trate judge4 F ED

. R. C IV

. P ROC . 4(d)(5).

5 Stapo Indus., Inc. v. M/V Henry Hudson Bridge , 190 F.R.D. 124, 125-26 (S.D.N.Y. 1999)(holding that, although the plaintiff’s waiver request failed to specify an officer of the defendant for delivery, this failure did not prejudice the defendant and therefore required it to pay costs).

6 Plaintiff cites decisions that have found other plaintiffs’ imperfect efforts to obtain waivers of process from defendants to be sufficiently compliant with Rule 4 to require recalcitrant defendants to pay service costs. See Stapo , 190

F.R.D. at 125-26; Trevino v. D.H. Kim Enters., Inc. , 168 F.R.D. 181, 182-83 (D. Md. 1996) (finding that plaintiff’s compliance with former Rule 4(c)(2)(C)(ii), which allowed defendant twenty instead of thirty days to reply and contained the same substantive information about waiver though not the same language as required by current Rule 4(d)(2), complied substantially enough with the new rule to justify imposing costs on the
defendants); Dymits v. American Brands, Inc. , No. C 96-1897 CW,

6 denied plaintiff’s motion for costs of service, finding that she

failed to show that she had filed proper waiver requests or that

she had addressed the waivers directly to defendants as required by

Federal Rule of Civil Procedure 4(d)(2)(a). T he court ordered

plaintiff’s motion denied for these reasons.

Rule 4(d) establishes procedures by which parties may request

and agree to waive formal service. The rule requires the district

courts to assess costs against defendan ts who refuse to waive

service of proc ess without good cause. 4 An important purpose of

the rule is to impose the costs of formal process on defendants who

do not show good cause for refusing waiver. 5

Plaintiff argues that she substantially complied with Rule 4's

procedural requirements and that defendants therefo re must pay

costs for service. 6 Defendants counter that plaintiff served their1996 WL 751111 at *15-16 (N.D. Cal. Dec. 31, 1996) (ordering the

defendant to pay costs because it was not prejudiced by the plaintiff’s failure to include one of two copies of the waiver form and a sentence about the increased time for response available to defendants who waive formal service of process).

7 Plaintiff also argues that her counsel and defense counsel reached an oral agreement by which defense counsel agreed to accept service and sign the waivers for defendants. Defense counsel denies entering into such an agreement. The magistrate judge found that this was irrelevant, as such a “gentleman’s agreement” between counsel could not waive the mandatory requirements of the rule. We agree.

8 Hensley v. Eckerhart , 461 U.S. 424, 437 (1983) (applying
42 U.S.C. § 1988); Berryman v. Hofbauer , 161 F.R.D. 341, 344 (E.D. Mich. 1995)(applying Rule 54(d) and 28 U.S.C. § 1920).

7 attorney rather than serving them or their author ized agent

directly as required by the rule. Defendants contend that this

kind of “substantial compliance” with the mandatory requirements of

the rule will not suffice to relieve a plaintiff of paying costs. 7

Defendants also correctly note that t he plaintiff has not

produced copies of the waiver requests to show that they comport

with Rule 4. Although defendants cite no case law requiring

plaintiffs to produce proof of compliance with Rule 4, the burden

to show entitlement to costs and fees under other statutes does

rest on the applicant. 8 Otherwise, a defendant would be forced to

prove a negative, i.e., that he did not receive proper forms.

Unlike service of proce ss for purposes of establishing

personal jurisdiction, service of a request for waiver of formal

service might be effective and achieve Rule 4's goals of minimizing

the costs of litigation even if a plaintiff does not strictly9 Plaintiff argues that defendants’ motion to dismiss is

flawed for not expressly stating that it was made under 12(b)(6). The magistrate judge treated this as a 12(b)(6) motion and defendants’ original motion stated that it was made under Rule 12(b)(6). Plaintiff cites a few cases rejecting motions to dismiss for failure to state with particularity the grounds therefor as required by F ED

. R. C IV

. P ROC . 7. Those cases, however, involved documents that apparently did not resemble
motions at all.

10 Dow Chemical Co. v. United States ex rel . Doe , 343 F.3d 325, 328 (5th Cir. 2003).

11 Id.

12 Spiller v. City of Texas City , 130 F.3d 162, 164 (5th Cir. 1997).

13 Fernandez-Montes v. Allied Pilots Ass’n , 987 F.2d 278, 284 (5th Cir. 1993).

8 comply with every formalistic requirement of the rule. Plaintiff’s

faulty servic e in combination with no proof that she actually

submitted the proper form s to the defense counsel, however,

justifies the district court’s order. We affirm the denial of

plaintiff’s motion for costs.

B. Rule 12(b)(6) Motion to Dismiss 9

District court grants of motions to dismiss under Rule

12(b)(6) are reviewed de novo

. 10 Dismissal for failure to state a

claimmay not be granted unless it appears beyond doubt that a

plaintiff can prove no set of facts that would entitle her to

relief. 11 The allegations must be viewed in the light most

favorable to plaintiff. 12 Conclusional allegations or “legal

conclusions masquerading as factual conclusions” will not survive

a defendant’s Rule 12(b)(6) motion to dismiss. 1314 Moore v. Willis Indep. Sch. Dist. , 233 F.3d 871, 874 (5th

Cir. 2000).

15 Coleman v. Franklin Parish School Bd. , 702 F.2d 74, 76 (5th Cir. 1983).

9 1. Claims Under 42 U.S.C. § 1983

Plaintiff appeals the dismissal of her § 1983 claims for use

of excessive force, procedural due process, slander, false arrest,

failure to t rain, and substantive due process violations. Only

plaintiff’s excessive force claim merits discussion.

a. Excessive Force

This circuit does not permit public school students to bring

claims for excessive corporal punishment as substantive due process

violations under § 1983 if the State provides an adequate remedy. 14

We have previously held that the State of Louisiana affords

students an adequate remedy through its tort law and statutory

provisions in Title 17. 15 In an effort to circumvent this obstacle,

plaintiff insists that Wysinger’s acts should not be characterized

as corporal punishment but rather as an excessive force violation

of her son’ s Fourth Amendment rights and substantive due process

interest in his bodily integr ity. The magistrate judge

nevertheless proceeded on the assumption that Wysinger’s acts did

constitute corporal pun ishment —— an assumption that plaintiff

strenuously contests —— and determined that, even if this circuit

permitted such claims under t he Fourth or Fourteenth Amendments,

plaintiff’s claim could not survive.16 County of Sacramento v. Lewis , 523 U.S. 833, 842 (1998)

(stating that where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government conduct, that amendment and not the more generalized notion of substantive due process should guide the analysis)(citations omitted).

17 In Hassan v. Lubbock Indep. Sch. Dist. , 55 F.3d 1075, 1079 (5th Cir. 1995), we noted in passing that seizure claims may arise by or at the direction of school officials, but that case involved a literal seizure. A child was placed in a holding cell during a class field trip to a prison, yet we found no Fourth Amendment violation because the seizure was for the purpose of maintaining discipline. Id. at 1080.

18 Gottlieb ex rel . Calabria v. Laurel Highlands Sch. Dist.

, 272 F.3d 168, 171-72 (3d Cir. 2001); Kurilla v. Callahan , 68 F. Supp. 2d 556, 563 (M.D. Pa. 1999)

.

10 i. Fourth Amendment: Seizure

We address plaintiff’s Fourth Amendment claim first because,

if it succeeds, she would be precluded from maintaining a

Fourteenth Amendment claim grounded in the same conduct. 16 We have

not previously decided whether a teacher’s momentary use of force

against a student gives rise to a Fourth Amendment seizure

violation. 17 The Middle District of Pennsylvania and the Third

Circuit have rejected the claim that a teacher’s momentary use of

force may support a Fourth Amendment claim. 18 These courts cited

the unique constitutional position of public school students, whose

movements and location are subject to close control by schools and

teachers, in finding that students charging excessive use of force

by a teacher must bring claims for violations of the Fourteenth19 Gottlieb , 272 F.3d at 171-72; Kurilla , 68 F. Supp. 2d at

561.

20 Gottlieb , 272 F.3d at 172; Kurilla , 68 F. Supp. 2d at

561.

21 Kurilla , 68 F. Supp. 2d at 563.

22 Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 655-56 (1995); Hassan , 55 F.3d at 1079 (citing New Jersey v. T.L.O.

, 469 U.S. 325, 339 (1985)(finding search of student conducted by principal constitutional).

11 Amendment rather than the Fourth Amendment. 19 They further stated

that the Fourth Amendment is primarily co ncerned with an initial

deprivation of liberty or invasions of privacy, but that a

teacher’s use of force is more properly regarded as a condition of

the school environment in which students’ l iberty is already

curtailed. 20 Such use of force is not “a scenario to which the

Fourth Amendment . . . textually or historically appl[ies].” 21

The Supreme Court and th is circuit have likewise recognized

that preservation of order in the schools allows for closer

supervision and control of school children than would otherwise be

permitted under the Fourth Amendment. 2 2 Further, permitting

students to bring excessive force claims under the Fourth Amendment

would eviscerate this circuit’s rule against prohibiting

substantive due process claims on the part of schoolchildren for

excessive corpo ral punishment. Given this prohibition against

constitutional claims for corporal punishment, the special

constitutional status of schoolchildren, and the fact that the

momentary “seizure” complained of in this case is not the type of23 Ingraham v. Wright , 430 U.S. 651, 661 (1977) (citing

R ESTATEMENT (S ECOND ) OF T ORTS § 147(2) (1965)).

24 Gottlieb , 272 F.3d at 174 (citing cases). See

, e.g. , Neal v. Fulton County Bd. of Educ. , 229 F.3d 1069, 1071-72 (11th Cir. 2000) (finding that gym teacher’s hitting student in the eye with a weight lock during a fight was corporal punishment);
London v. Dirs. of the DeWitt Pub. Schs. , 194 F.3d 873, 876 (8th Cir. 1999)(analyzing a teacher’s dragging a student across the floor and banging his head against a metal pole after student refused to leave cafeteria as corporal punishment); Metzger v.
Osbeck , 841 F.2d 518, 519-20 (3d Cir. 1988) (holding a student in a chokehold until he passed out, fell to the ground and broke his nose analyzed as corporal punishment).

12 detention or physical restraint normally associated with Fourth

Amendment claims, we decline to recognize plaintiff’s claim under

the Fourth Amendment.

ii. Fourteenth Amendment: Substantive Due Process

Characterized as corporal punishment, Wysinger’s alleged acts

do not support a substantive due process claim. Thus, whether the

magistrate judg e was correct in treating Wysinger’s behavior as

corporal punishment rather than as a malicious and unprovoked

attack is an important issue.

The Supreme Court described corporal punishment as force that

a teacher “reasonably believes to be necessary for a child’s proper

control, trai ning, or education.” 2 3 Several other circuits have

classified informal physical confrontations as corporal punishment,

so long as it is possible to cons true the force as an attempt to

serve pedagogical objectives. 24 At bottom, fairly characterizing

an act as corporal punishment depends on whether the school

official intended to discipline the student for the purpose of25 See 20 U.S.C. § 1400 et seq. (1997).

13 maintaining order and respect or to cause harm to the student for

no legitimate pedagogical purpose.

Plaintiff asserts that Coach Wysinger acted “maliciously and

sadistically in order to cause harm . . .and not for the purposes

of restoring order or maintaining disciplin e.” The facts as

alleged by plaintiff, however, also show that Kevin was tardy

returning to detention and that Wysinger believed that Kevi n had

been purposefully delaying or avoiding his return to the detention

room. Thus, even if Kevin’s allegations about Wysinger’s

inappropriate, abusive behavior are true, Wysinger’s acts

apparently were meant to punish Kevin and did not constitute a

random, malicious, and unprovoked attack. We would never condone

the kind of conduct of which Wysinger is accused, but his alleged

actions are properly characterize d as corporal punishment. We

therefore hold that plaintiff has not stated a substantive due

process claim. If she is entitled to a remedy for Wysinger’s

cond uct, it must be under Louisiana state law and not under the

Constitution of the United States.

2. Claims Under the IDEA

Plaintiff contests the district court’s dismissal without

prejudice of her claims advanced under IDEA for her failure to

exhaust administrative remedies. 25 She does not deny that these

claims req uire exhaustion but argues that exhaustion would have26 958 F.2d 108, 111 (5th Cir. 1992). Congress amended 20

U.S.C. § 1415 after the Gardner decision, striking former § 1415(f), the section on which we relied for the proposition that plaintiffs are required to exhaust administrative remedies before bringing an IDEA claim in federal court. See id. Subsection (f)’s exhaustion requirement has been preserved in new subsection
(l), however.

27 Id. at 112.

28 Id.

14 been inadequate and futile in this instance. Plaintiff does not,

though, supply support for these arguments.

We have previously denied an IDEA claim for failure to exhaust

under similar circumstances despite plaintiff’s arguments that

exhaustion would have been futile. In G ardner v. School Board

Caddo Parish

, a schoolchild’s paren ts challenged a School Board

policy as violating the IDEA, lost, and immediately went to federal

court rather than exhausting the administrative remedies provided

by the statute. 26 Although the parents had petitioned the school

board to change its policy, they had not formally sought review by

the board. 27 Most importantly, the parents did not appeal the

school’s decision to a state agency and, although they argued that

it would be futile to ask the school board to change it s policy,

they did not allege that appeal to a state administrative agency

would have been futile. 28 We held that the parents had failed to

meet their burden of demonstrating that appeal would be futile or

inadequate and dismissed the case for lack of subject matter

jurisdiction.29 Rittenhouse v. Mabry , 832 F.2d 1380, 1387 (5th Cir. 1987)

(holding that a plaintiff’s failure to appeal a magistrate judge’s denial of her motion for leave to amend to the district court resulted in no jurisdiction in the circuit court).

30 F ED

. R. C IV

. P. 72(a) (requiring parties to object to magistrate judge’s rulings on non-dispositive matters within ten days of the magistrate’s order).

15 In the instant case, plaintiff has not advanced any reason why

appeal would be futile or inadequate. She has not even petitioned

the School Board, as the Gardner plaintiffs did. Like the

Gardner plaintiffs, she has failed to show that she should not be

required to exhaust administrative remedies before bringing suit in

federal court.

C. Motions to Amend, for Scheduling Conference, and for Rule 11
Sanctions

Defendants correctly note that p laintiff failed to file an

objection to the magistrate judge’s denial of leave to amend with

the district court, as required by Federal Rule of Civil Procedure

72. Consequently, plaintiff’s claim is not properly before us, and

we decline to address it. 29 As plaintiff also failed to object to

the magistrate judge’s denial of her motion for a scheduling

conference, we shall not consider it either. 30

Plaintiff also appeals the district court’s declaration that

defendant s ’ motion to disqualify plaintiff’s counsel is moot.

Plaintiff claims to have filed a motion for Rule 11 sanctions in

opposition to defend ants’ motion and contests the magistrate31 F ED

. R. C IV

. P. 11(c)(1)(A).

16 judge’s and district court’s refusals to consider these sanctions

when they declared defendants’ motion moot.

Plaintiff has never filed a viable Rule 11 motion, however.

Rule 11(c)(1) requires that a party make a separate motion for Rule

11 sanctions rather than including it in another motion or

request. 3 1 Plaintiff’s challenges to each of these magistrate or

district court’s rulings are therefore unavailing.

III. CONCLUSION

For the foregoing reasons, all rulings, orders, and judgments

of the magistrate judge and district court are, in all respects,

AFFIRMED.