NOT RECOMMENDED FOR PUBLICATION

File Name: 14a0669n.06

No. 13-3423

UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT

LISA SHIVELY, on her own behalf and on behalf of 

her minor child other T.S., ESTATE OF JAMES 

SHIVELY, on behalf of Lisa A. Shively, Executrix 

originally named as James Shively,

Plaintiffs – Appellees,

v.

GREEN LOCAL SCHOOL DISTRICT BOARD OF 

EDUCATION,

Defendant,

and

MICHAEL NUTTER, WADE LUCAS, CINDY 

BROWN, MARK BOOTH, JEFF MILLER, JEFF 

WELLS, in their official and individual capacities, 

JOHN DOE 1 through 10,

Defendants - Appellants.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE

NORTHERN DISTRICT OF 

OHIO

BEFORE: GRIFFIN, WHITE, and STRANCH, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Defendant school officials appeal the district 

court’s denial of their motion to dismiss on qualified immunity and state-law immunity grounds. 

The district court denied qualified immunity to all Defendants on Plaintiffs’ Fourteenth 

Amendment substantive due process and equal protection claims on the ground that Defendants 

failed to prevent or respond to ongoing gender- and religious-based harassment and bullying, and 
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denied Defendants statutory immunity from state-law claims of negligence and malicious 

conduct. We AFFIRM in part, REVERSE in part, and REMAND to the district court.

I.

The district court stated the following pertinent facts: 

Plaintiffs Lisa and James Shively filed this action under 42 U.S.C. § 1983 

in November 2011 on their own behalf, and on behalf of their minor child, T.S. 

The eight-count Amended Complaint ([PID 119]) seeks declaratory, injunctive, 

and monetary relief against the Green Local School District Board of Education 

(also “Board of Education” or “Defendant Board”), Michael Nutter, Wade Lucas, 

Cindy Brown, Mark Booth, Jeff Miller, and Jeff Wells (also collectively 

“individual Defendants”) for alleged violations of Plaintiffs’ civil rights. 

Specifically, Plaintiffs allege Defendant Board and its employees failed to prevent 

or respond to gender- and religion-based bullying and harassment aimed at T.S., 

thereby violating Plaintiffs’ constitutional rights, Title IX, and state law. Count I 

alleges a deprivation of Plaintiffs’ substantive due process rights under the 

Fourteenth Amendment. Count II alleges a deprivation of Plaintiffs’ equal 

protection rights under the Fourteenth Amendment. Count III is a First 

Amendment claim wherein Plaintiffs allege that T.S. was punished for exercising 

her right to identify herself as Jewish, a right Defendants failed to enforce. Count 

IV alleges that Defendants, by allowing religion-based bullying and harassment, 

violated T.S.’s right to the free exercise of her religion under the First 

Amendment. Count V alleges a claim under Title IX of the Civil Rights Act of 

1972, 20 U.S.C. § 1681 et seq. Count VI alleges that Defendant Board’s failure to 

train its employees regarding bullying constitutes a violation of the Board’s 

obligations, resulting in liability pursuant to Monell v. Dep’t of Soc. Servs., 436 

U.S. 658 (1978). Count VII alleges a negligence state law claim against the 

individual Defendants. Finally, Count VIII alleges a state law claim of malicious 

purpose, bad faith, and wanton and reckless conduct against the individual 

Defendants. 

Shively v. Green Local Sch. Dist. Bd. of Educ., No. 5:11CV2398, 2013 WL 774643, at *1 (N.D.

Ohio Feb. 28, 2013). 

The Shivelys allege that T.S. is Jewish, that few Jews attend Green Local School District, 

PID 123, that the named Defendants are “responsible for the implementation of all official 

governmental laws, policies, regulations, and procedures” governing the Green Local School 

District, PID 121–23, and that the harassment and bullying faced by T.S. took the form of 
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“constant name-calling, harassment based on her religion, teasing and verbal intimidation, and 

on several occasions, physical violence.” PID 123. The district court observed that

bullying-physical, verbal, and online-went on for several years, including: 

a) Students regularly said she would “rot in Hell” because she did not believe in

Jesus Christ; she was regularly called a “dirty Jew” or “Hitler;”

b) Several times she was knocked into lockers while walking through the 

hallways of school;

c) She was tripped, shoved, hit, kicked, had her books knocked out of her hands 

on a regular basis;

d) In September, 2007, T.S. was stabbed in the leg with a pencil during class; T.S. 

had to be transported to an urgent-care center, where the tip of the pencil was 

removed from her leg with a scalpel;

e) In April, 2008, Mrs. Shively informed Defendant Wade Lucas, then the 

superintendent of schools, that she would keep T.S. out of school until the 

bullying situation was addressed; Mrs. Shively kept T.S. out of school for one 

week, but eventually brought her back to school when nothing was done to 

address the situation;

f) In September and October, 2008, T.S. was verbally harassed on a daily basis, 

called “a fucking Jew” by several boys as she got on the bus; the bus driver never 

disciplined the boys or filed any sort of report to the school district;

g) On October 14, 2008, two boys spat on T.S. on the bus[;]

h) In November, 2009, T.S. was assaulted by a boy in the choir room at school, 

causing T.S. to have to be taken to the hospital and to wear crutches for several 

weeks. After the incident, the boy who assaulted T.S. and others continued to 

verbally harass and threaten T.S., telling her they would break her crutch over her 

head;

i) In October, 2010, several students created a Facebook page, entitled, “If you 

think T.S. is a whore and needs to go back to 8th grade, join!” The mother of one 

of the girls who created the page posted comments on the page;

j) In January, 2011, two students at Green High School created a “kill list” which 

included T.S.’s name as a target for being killed or hurt. While school officials 

assured Mrs. Shively that the perpetrators would never be able to set foot in the 

high school again, one of the perpetrators was seen by T.S. in the cafeteria just 

three weeks after the incident;
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k) On August 24, 2011, the first day of the current school year, T.S. was helping 

with a “Club Fair,” a program meant to showcase the various clubs students can 

join, when students began shouting “Jew” at her from across the cafeteria;

l) On September 20, 2011, a female student approached T.S. in the cafeteria in 

front of other students and called T.S. a “whore,” among other names;

m) On September 30, 2011, T.S. endured an entire day of teasing and harassment 

from students between and during class. 

Shively, 2013 WL 774643, at *1–2. 

The Shivelys allege that all named Defendants knew of the ongoing harassment because 

of the several instances in which Lisa Shively notified school officials, police, and school 

guidance counselors.

The defendants knew about the harassment because plaintiff Lisa Shively, T.S.’s 

mother, visited, e-mailed and called whichever school T.S. was attending at the 

time on numerous occasions to complain about the bullying, to ask that something 

be done, and to warn school officials that T.S. was depressed because of the 

constant harassment; on several occasions, Mrs. Shively contacted law 

enforcement authorities, including a resource officer who worked inside the 

school.

PID 125–26. The Shivelys further allege:

Despite being told repeatedly about the bullying and harassment, defendants did 

nothing to stop or diminish the harassment, nor did they punish or discipline the 

perpetrators, despite the fact that the defendants were told by Lisa Shively and 

T.S. who the perpetrators were and despite the fact that the school district has a 

clear policy prohibiting bullying, harassment and discrimination based on 

religion. 

PID 126. On October 3, 2011, Mrs. Shively informed school officials that T.S. could no longer 

attend Green High School because of the bullying and the school’s failure to respond to it. PID 

125. 

Defendants filed a motion for a judgment on the pleadings pursuant to Federal Rule of 

Civil Procedure 12(c) and moved to dismiss the Shivelys’ personal claims for lack of subject-
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matter jurisdiction. PID 156–200. The district court dismissed the parents’ indirect 

constitutional claims, Title IX claim, and First Amendment claims. Shively, 2013 WL 774643, at 

*4, 6–8. The court did not dismiss T.S.’s due process and equal protection claims, or her statelaw claims. Id. at *4–6, 9–10. The district denied qualified immunity and state-law immunity to

all individual Defendants with respect to all remaining claims. Id. at *9–10. The court also 

declined to dismiss Plaintiffs’ Monell claim for violations of the Fourteenth Amendment, but 

noted that “[p]laintiffs concede that if any of their claims set forth in Counts I through IV fails 

[sic] on the merits at this stage, then no corresponding Monell claim can survive.” Id. at *8–9. 

Defendants timely filed this interlocutory appeal, challenging the district court’s denial of 

qualified immunity and state-law immunity.

II.

This court reviews de novo a district court’s decision on a motion for judgment on the 

pleadings as well as a motion to dismiss under Rule 12(b)(6), Jasinski v. Tyler, 729 F.3d 531, 

538 (6th Cir. 2013), and construes the complaint in a light most favorable to the plaintiff, 

accepting all factual allegations as true. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) 

(citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A plaintiff must allege facts that, if accepted as 

true, are sufficient to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. 

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “[W]here the well-pleaded facts 

do not permit the court to infer more than the mere possibility of misconduct, the complaint has 

alleged—but it has not shown—that the pleader is entitled to relief.” Top Flight Entm’t, Ltd. v. 

Schuette, 729 F.3d 623, 630 (6th Cir. 2013) (quoting Iqbal, 556 U.S. at 679). “Federal Rule of

Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the 

pleader is entitled to relief.’ Specific facts are not necessary; the statement need only ‘give the 
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Sensations, 

Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 

U.S. 89, 93 (2007)).

III.

Defendants first argue that the Shivelys failed to plead with particularity facts alleging 

each administrator violated a constitutional or statutory right. Government officials may not be 

held liable for the unconstitutional conduct of their subordinates under a theory of respondeat 

superior. Iqbal, 556 U.S. at 676. Because vicarious liability is inapplicable to § 1983 claims, a 

plaintiff must plead that each government-official defendant, through the official’s own 

individual actions, has violated the Constitution. Id. The test is whether, reading the complaint 

in the light most favorable to the plaintiff, it is plausible that an official’s acts violated the 

plaintiff’s clearly established constitutional right. Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 

55, 562–63 (6th Cir. 2011) (citing Iqbal, 556 U.S. at 662) (“No heightened pleading requirement 

applies.”).

Defendants argue that the Shivelys fail to specifically allege that Defendants violated 

T.S.’s rights to due process and equal protection, and the district court erred when it failed to 

review the allegations against each Defendant and instead summarily denied immunity to all. 

First, in Iqbal, the Supreme Court discussed its subject-matter jurisdiction to address the 

denial of a motion to dismiss under the collateral-order doctrine, holding that appellate 

jurisdiction is not confined to the ultimate issues relevant to the qualified immunity defense 

itself, but may be based on the complainant’s failure to state a claim. Iqbal, 556 U.S. at 673 

(citing Hartman v. Moore, 547 U.S. 250, 257, n.5 (2006)). The Court opined that whether a 

particular complaint sufficiently alleges a clearly established violation of law cannot be decided 
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in isolation from the facts pleaded, holding that the sufficiency of Iqbal’s pleadings was both 

“inextricably intertwined with” (citing Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 51 

(1995)) and “directly implicated by” the qualified immunity defense. Iqbal, 556 U.S. at 673

(citing Hartman, 547 U.S at 257, n.5); see also Heyne, 655 F.3d at 561, 565 (reviewing whether 

Heyne’s complaint adequately and separately alleged a plausible constitutional violation by 

school officials claiming qualified immunity). 

Second, Iqbal explained that to survive a motion to dismiss on the grounds of qualified 

immunity, a plaintiff must allege sufficient facts, accepted as true, to state a claim for relief that 

is plausible on its face. 566 U.S. at 678. A claim has facial plausibility when the plaintiff pleads 

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

misconduct alleged. Id. Determining whether a complaint states a plausible claim for relief is a 

context-specific task that requires the reviewing court to draw on its judicial experience and 

common sense. Id. at 679. 

In the instant case, the facts alleged in the complaint are sufficient to plausibly suggest 

that the school official Defendants knew about the ongoing harassment and bullying faced by 

T.S and failed to act. Defendants Wade Lucas, Mark Booth, and Michael Nutter are specifically 

alleged to have had knowledge of and to have made decisions regarding complaints of 

harassment. Defendants Cindy Brown, Jeff Miller, and Jeff Wells served as Principal of Green 

Intermediate School, Principal of Green Middle School, and Assistant Principal of Green Middle 

School, respectively. The complaint alleges that Defendants “knew about the harassment

because plaintiff Lisa Shively, T.S.’s mother, visited, e-mailed and called whichever school T.S. 

was attending at the time on numerous occasions to complain about the bullying, to ask that 

something be done, and to warn school officials that T.S. was depressed because of the constant 
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harassment; on several occasions, Mrs. Shively contacted law enforcement authorities, including 

a resource officer who worked inside the school.” PID 126. Defendant principals’ specific roles 

were such that they would likely have known based on the factual allegations. The Shivelys also 

allege that Defendants “knew or should have known about this constant harassment,” PID 125, 

and allege that during 2007-2008, the guidance counselor (not a Defendant) was informed. PID 

126. The Shivelys further allege that “defendants” did nothing to stop the bullying “despite 

being told repeatedly about the bullying.” PID 126. Further, it is a fair inference that the 

appropriate principals were aware of the ongoing harassment and bullying when, in September,

2007, T.S. was allegedly stabbed in the leg with a pencil during class and transported to an 

urgent-care center, and, in November of 2009, T.S. was allegedly assaulted in the choir room and 

again taken to the hospital, and later threatened by the same boy who said he would “break her 

crutch over her head.” PID 124.

Given the number and variety of ways the Shivelys allege they contacted school officials, 

the Shivelys notification of police, medical care professionals, and the guidance counselor, and 

the Superintendent’s knowledge of the ongoing harassment, the complaint plausibly alleges that 

Brown, Miller, and Wells, as the Principals and Assistant Principal of schools attended by T.S.,

knew about the ongoing student-on-student bullying and, given their positions of authority, were 

involved in making decisions regarding how it would be addressed. This conclusion is also 

supported by the procedural posture of this case, where litigation has continued during the 

pendency of this appeal and Brown, Miller, and Wells are proper Defendants before this court on 

the Shivelys’ state-law claims. We conclude that the district court did not err in finding that the 

Shivelys’ complaint meets the standard necessary to comply with Rule 8. See Iqbal, 556 U.S at 

683–84. 
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IV.

Defendants argue they are entitled to qualified immunity on the Shivelys’ due process 

and equal protection claims. The defense of qualified immunity shields government officials 

performing discretionary functions from liability “insofar as their conduct does not violate 

clearly established statutory or constitutional rights of which a reasonable person would have 

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity is an entitlement 

not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200 

(2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009) (internal 

quotation marks and citations omitted). This standard requires courts to examine the right 

asserted “at a relatively high level of specificity, and on a fact-specific, case-by-case basis.”

O’Malley v. City of Flint, 652 F.3d 662, 668 (6th Cir. 2011) (internal quotation marks and 

alterations omitted). 

This court follows a three-step analysis when reviewing a district court’s decision 

concerning qualified immunity. See Gaspers v. Ohio Dep’t of Youth Serv., 648 F.3d 400, 412

(6th Cir. 2011). First, we evaluate whether the facts demonstrate that a constitutional violation 

has occurred. Id. (citing Holzemer v. City of Memphis, 621 F.3d 512, 519 (6th Cir. 2010)). 

Second, we determine whether the violation involved a clearly established constitutional right of 

which a reasonable person would have known. Id. Third, we consider whether the plaintiff has 

offered-here, by allegation in the complaint-sufficient evidence to indicate that what the official 

allegedly did was objectively unreasonable in light of clearly established constitutional rights. 

Id. While conducting this review, we view the facts in the light most favorable to the plaintiff. 

Id. (citing Siggers–El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005)). 
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A. 

Defendants argue that the Shivelys fail to state a substantive due process claim because 

Defendants did not affirmatively act to increase the risk of harm to T.S. See Jones v. Reynolds, 

438 F.3d 685, 691 (6th Cir. 2006) (officers who came upon and failed to stop an illegal drag race 

did not affirmatively act or increase risk of danger to plaintiff). 

As a general rule, the Due Process Clauses of the Fifth and Fourteenth Amendments 

“confer no affirmative right to governmental aid, even where such aid may be necessary to 

secure life, liberty, or property interests of which the government itself may not deprive the 

individual.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). 

Generally, substantive due process does not impose a constitutional duty on a school to protect 

students from harm inflicted by private actors, such as their classmates. See id. at 195. A statecreated danger exception applies where a state actor “creates a dangerous situation or renders 

citizens more vulnerable to danger.” Jasinski, 729 F.3d at 538–39 (citing Butera v. Dist. of 

Columbia, 235 F.3d 637, 648–49 (D.C. Cir. 2001)). 

[A] plaintiff may bring a substantive due process claim by establishing (1) an 

affirmative act by the State that either created or increased the risk that the 

plaintiff would be exposed to private acts of violence; (2) a special danger to the 

plaintiff created by state action, as distinguished from a risk that affects the public 

at large; and (3) the requisite state culpability to establish a substantive due 

process violation. 

Id. (quoting Schorder v. City of Fort Thomas, 412 F.3d 724, 728 (6th Cir. 2005)). In determining 

whether an affirmative state act increased the risk of harm to an individual, the question is 

whether the individual was safer before the state action than after it. Id. at 539.1 

 

1Defendants contend that Superintendent Nutter should be immune from bullying claims arising 

before he was hired by the District, but there is no evidence in the record indicating when he was 

hired. This argument should be addressed to the district court on remand.
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Defendants correctly argue that this court does not find a state-created danger where a 

victim would have been in the same or greater danger had the officials not acted. See McQueen 

v. Beecher Cmty. Schs., 433 F.3d 460, 466 (6th Cir. 2006). In McQueen, a first-grade student 

shot another child in his class while his teacher was out of the room, twenty-seven feet down the 

hall. Id. at 463. This court opined that leaving the students unsupervised was not an affirmative 

act that increased the risk of violence because the danger was created by the perpetrator’s 

presence in the room with the victim, and there was no guarantee that had the teacher been in the 

room, the perpetrator would have been discouraged from shooting or the teacher could have 

prevented the shooting. Id. at 465–66. However, this court distinguished McQueen from an 

Eighth Circuit case where a school employee suspected the occurrence of a sexual assault and

“placed the boys in the shower together [the next day] to confirm his suspicions,” id. at 467 

(citing Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993)), explaining that “[s]imply 

walking out of the room without any inkling that the [perpetrator] had a gun is different both in 

degree and kind.” Id.

Although other school harassment cases from this Circuit granted immunity to defendants 

on state-created danger claims, in each case the defendants remedied student-on-student 

violence. See Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 367 (6th Cir. 2012) cert. 

denied, 133 S. Ct. 282 (2012) (finding school did not increase danger to plaintiff by telling the 

perpetrator to stop sexually harassing her); S.S. v. E. Ky. Univ., 532 F.3d 445, 455–56 (6th Cir. 

2008) (holding that plaintiff’s substantive due process right was not violated where the school 

took affirmative steps to address incidents of harassment involving S.S.—specifically, meeting 

with students, communicating with parents, and disciplining the offending students); Doe v. 

Claiborne Cnty., 103 F.3d 495, 512 (6th Cir. 1996) (defendant school officials were entitled to 
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qualified immunity on student’s due process claim where they reported allegations of sexual 

abuse by teacher to DHS, removed the perpetrator from student contact, and closely supervised 

the perpetrator). But none of these cases addressed a claim in which school officials took such 

limited action in the face of a pattern of bullying and violence targeted at one student. Here, 

Defendants’ alleged decision not to enforce rules against bullying or punishments for bullying 

gave students license to act with impunity. We decline to establish a standard in which 

“[d]ereliction of duty becomes a school’s best defense,” particularly in cases such as this where it 

“enabl[es] a pattern of physical abuse to persist,” Morrow v. Balaski, 719 F.3d 160, 196 (3d Cir. 

2013) (Fuentes, J. dissenting), and would reasonably be expected to embolden them to continue 

to escalate their abuse.

In any event, even assuming there was a state-created danger, reasonable officials would 

not have believed that their conduct was unlawful based on clearly established law. Defendants 

correctly argue that federal cases addressing the state-created danger doctrine have not 

previously found school officials liable for student-on-student harassment. Although these cases 

are distinguishable, the fact remains that at the time Defendants violated T.S.’s substantive due 

process right, it was not clearly established that school officials violate due process by failing to 

address student-on-student harassment. Accordingly, we reverse the district court’s denial of 

qualified immunity for violations of T.S.’s substantive due process right.

B.

The Shivelys allege that T.S. was deprived of an equal education opportunity as a result 

of religion-based bullying and harassment known to Defendants, in violation of the Equal 

Protection Clause of the Fourteenth Amendment. The Equal Protection Clause prevents states 

from making distinctions that (1) burden a fundamental right; (2) target a suspect class; or 
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(3) intentionally treat one individual differently from others similarly situated without any 

rational basis. Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010). Here, the Shivelys argue 

that T.S. was harassed because she was Jewish and because of her gender. 

[T]o demonstrate a violation of the Fourteenth Amendment’s Equal Protection 

Clause, [the Shivelys] must demonstrate the defendants’ [gender-and-religionbased] discriminatory intent with respect to their response to the student-onstudent harassment. Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 

139–40 (2d Cir. 1999). Defendants must have been deliberately indifferent to the 

allegations of student-on-student [gender-and religion-based] harassment. 

Williams v. Port Huron Sch. Dist., 455 F. App’x 612, 618 (6th Cir. 2012) (citing Gant, 195 F.3d 

at 139–40). “We agree with other circuits that have considered [student-on-student harassment] 

that the plaintiffs must show either that the defendants intentionally discriminated or acted with 

deliberate indifference.” Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1135 (9th Cir. 

2003) (citing Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996); Gant, 195 F.3d at 140); see 

also Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1249–51 (10th Cir. 1999) (“[S]upervisory 

municipal employees may be held liable under the Fourteenth Amendment for deliberate 

indifference to the discriminatory conduct of third parties.”); Schroeder ex rel. Schroeder v. 

Maumee Bd. of Educ., 296 F. Supp. 2d 869, 874 (N.D. Ohio 2003) (Plaintiff must show either 

that the defendants intentionally discriminated against him or acted with deliberate indifference) 

(citing Nabozny, 92 F.3d at 454). 

The standard for deliberate indifference “announced by the Supreme Court is a ‘clearly 

unreasonable response in light of the known circumstances.’” Vance v. Spencer Cnty. Pub. Sch. 

Dist., 231 F.3d 253, 260 (6th Cir. 2000) (quoting Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 
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629, 648 (1999)).

2

 These claims do not require proof that “the defendant fully appreciated the 

harmful consequences of that discrimination, because deliberate indifference is not the same as 

action (or inaction) taken maliciously or sadistically for the very purpose of causing harm.” 

Williams, 455 F. App’x at 619 (citing Gant, 195 F.3d at 141).

Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009), is instructive. In that 

case, this court declined to grant qualified immunity to school officials where, as here, an 

individual student suffered bullying that was “severe and pervasive” and “lasted for years” where

the response taken by the officials was inadequate “to deter other students from perpetuating the 

cycle of harassment.” Id. at 447–48. This court held that “a reasonable jury certainly could 

conclude” that “the school district’s standard and ineffective response to the known harassment 

became clearly unreasonable.” Id. at 449. “We cannot say that, as a matter of law, a school 

district is shielded from liability if that school district knows that its methods of response to 

harassment, though effective against an individual harasser, are ineffective against persistent 

harassment against a single student.” Id. at 448; see also Vance, 231 F.3d at 262–63 (declining 

to grant qualified immunity because once school knew its response to ongoing harassment of 

female student was inadequate “it was required to take further reasonable action in light of the 

circumstances to avoid new liability.”); cf Williams, 455 F. App’x at 619 (holding school 

officials were not deliberately indifferent where they made extensive efforts to combat racial 

harassment, including notifying police, holding a student assembly, meeting with the NAACP, 

discussing parents’ concerns, and hiring management consultants). 

 

2

The deliberate indifference standard used in these cases is “substantially the same” as the 

deliberate indifference standard applied by the Sixth Circuit in Title IX cases. Williams ex rel. 

Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 369 (6th Cir. 2005). 
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Here, the Shivelys’ allegations amply set forth facts sufficient to establish the requisite 

intent or indifference. Defendants failed to enforce the school policy on harassment. It is well 

settled law that departures from established practices may evince discriminatory intent. 

Nabozny, 92 F.3d at 455 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 

252, 267 (1977)). Further, Lucas acted as Superintendent of Green Local School District and 

was informed in April 2008 of instances of bullying so severe that Mrs. Shively removed T.S. 

from school for one week in an effort to have the situation addressed, but nothing was done. PID 

124. Defendant Mark Booth, the Principal of Green Intermediate Schools, was told on several 

occasions of incidents that occurred between 2008 and 2009 and not only failed to assist T.S., 

but suggested that T.S. fight the boy bullying her and that she enjoyed the attention. PID 126. 

Defendant Nutter, as Superintendent of Green Local School District, did nothing to address the 

escalating harassment of T.S. until after the Shivelys removed T.S. from the school district. In 

addition to these specific allegations, the Shivelys allege that Lisa Shively called, visited, and 

emailed whichever school her daughter attended at the time of each incident of harassment and 

notified local medical care professionals, police, and school guidance counselors. They further 

allege that Defendants “were aware” of the ongoing harassment and make allegations regarding 

Defendants’ obligations to enforce disciplinary rules. Further, as discussed by the district court, 

a perpetrator who was supposedly expelled for authoring a “kill list” with T.S.’s name was seen 

on school grounds only three weeks later.3 Taking the alleged facts as true, Defendants were 

aware of the ongoing harassment that occurred while T.S. attended their schools but did nothing 

to address the situation. As in Patterson, Defendants cannot be shielded from liability where 

they took meager steps they knew to be ineffective to address severe and pervasive harassment 

 

3

It is not clear from the complaint which school official assured the Shivelys that the “kill list” 

perpetrator would not be permitted to return to school. 
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that went on for years. Accordingly, the Shivelys have adequately pled that Defendants violated 

T.S.’s right to equal protection. 

The equal protection right to be free from student-on-student discrimination is wellestablished. See Williams, 455 F. App’x at 619; Murrell, 186 F.3d at 1250–52; Flores, 324 F.3d 

at 1135. It is difficult to imagine how any school administrator could think he would not be 

liable for allowing unregulated religious and gender-based persecution that spanned a four-year 

period. In light of the case law, the Shivelys have pled facts that show Defendants were 

objectively unreasonable in failing to address their complaints of student-on-student harassment 

and are not entitled to qualified immunity on the Shivelys’ equal protection claim.

V.

Finally, the Shivelys allege state-law claims of negligence and/or gross negligence and 

malicious purpose.4 In order to establish a claim of negligence, a plaintiff must show: 1) 

defendant owed him a duty; 2) that duty was breached; 3) and that breach proximately caused 

plaintiff’s injury. Titus v. Dayton Bd. of Ed., No. 17920, 2000 WL 84649, at *2 (Ohio Ct. App. 

2000). 

The individual Defendants claim statutory immunity. “R.C. 2744.02(A) provides that as 

a general rule a political subdivision is not liable in tort for injuries to persons or property that 

occur in connection with the performance of a governmental or proprietary function.” Marcum 

 

4Ohio courts have held that the defenses and immunities under Ohio Rev. Code Ann. 

§ 2744.03(A) do not provide “a direct way to establish liability.” Logan v. Sycamore Cmty. Sch. 

Bd. of Educ., No 1:09-CV-00885, 2012 U.S. Dist. LEXIS 77474, at *20–21 (S.D. Ohio June 5, 

2012) (citing Wright v. Mahoning Cnty. Bd. of Comm’rs, 2009 Ohio 561, P32 (Ohio Ct. App. 

2009)). Thus, the Shivelys cannot bring an independent claim for malicious purpose. 
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v. Talawanda City Sch., 670 N.E.2d 1067, 1069 (Ohio Ct. App. 1996).5 “R.C. 2744.02(B)(4) . . .

grants an exemption from immunity for injuries resulting from the negligence of political 

subdivision employees.” Aratari v. Leetonia Exempt Village Sch. Dist., 7th Dist. No. 06–CO–

11, 2007-Ohio-1567, at *15 (Ohio Ct. App. 2007). Under § 2744.03(A), school administrators 

are immune from liability in personal-injury suits. One exception to this rule is when the 

employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or 

reckless manner. Ohio Rev. Code Ann. § 2744.03(A)(6). 

The Shivelys allege that Defendants acted wantonly and/or recklessly and argue that 

generally, the issue of malice, bad faith, and wanton or reckless behavior is for the jury. See 

Fabrey v. McDonald Vill. Police Dep’t, 639 N.E.2d 31, 35 (Ohio 1994). A plaintiff is not 

required to affirmatively demonstrate an exception to immunity at the pleading stage because 

that would require the plaintiff to overcome a motion for summary judgment in his complaint. 

Instead, a plaintiff is only required to allege a set of facts which, if proven, would plausibly allow 

him to recover. See Mohat v. Horvath, 2013-Ohio-4290, ¶ 29 (Ohio Ct. App. 2013). 

According to the Ohio Court of Appeals:

One acts with a malicious purpose if one willfully and intentionally acts with a

purpose to cause harm. Piro v. Franklin Twp., [656 N.E.2d 1035, 1041 

(Ohio Ct. App. 1995)]. Malice includes “the willful and intentional design to do 

injury, or the intention or desire to harm another through conduct which is 

unlawful or unjustified.” [Shadoan v. Summit Cnty. Children Serv. Bd., 2003-

Ohio-5775, at ¶ 12 (Ohio Ct. App. 2003) (internal quotations omitted.)]. Bad 

faith is defined as a “dishonest purpose, moral obliquity, conscious wrongdoing, 

or breach of a known duty through some ulterior motive or ill will.” [Lindsey v. 

Summit Cty. Children Services Bd., 2009-Ohio-2457, at ¶ 16 (Ohio Ct. App. 

2009) (internal quotations and citations omitted)]. A person acts wantonly if that 

person acts with a complete “failure to exercise any care whatsoever.” Fabrey v. 

McDonald Police Dept.[, 639 N.E.2d 31, 35 (Ohio 1994)]. One acts recklessly if 

 

5A school district is a political subdivision of the State of Ohio. Ohio Rev. Code Ann. 

§ 2744.01(F). We therefore understand the malicious purpose allegation to refer to the absence 

of statutory immunity.
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one is aware that one’s conduct “creates an unreasonable risk of physical harm to 

another[.]” [Thompson v. McNeill, 559 N.E.2d 705, 708 (Ohio 1990), abrogated 

on other grounds Anderson v. Massillon, 983 N.E.2d 266 (2012) (internal 

quotations and citation omitted)]. Recklessness is more than mere negligence in 

that the person “must be conscious that his [or her] conduct will in all probability 

result in injury.” Fabrey, [639 N.E.2d at 35].

Spears v. Akron Police Dep’t, No. 24847, 2010 WL 625822, at *4 (Ohio Ct. App. Feb. 24, 

2010)). “Distilled to its essence, and in the context of R.C. 2744.03(A)(6), recklessness is a 

perverse disregard of a known risk.” O’Toole v. Denihan, 889 N.E.2d 505, 517 (Ohio 2008).

The question of recklessness turns on whether Defendants knew of and could foresee 

harm to a student and whether they took actions in response to the harassment. See Aratari 

2007-Ohio-1567, at *32 (holding that school district was not reckless where a student with some 

behavioral problems assaulted a previously untargeted student without provocation); Marcum, 

670 N.E.2d at 1070 (holding that teacher was immune from liability where students who 

previously worked well together were left alone and assaulted a member of their group); 

Williams v. Columbus Bd. of Educ., 610 N.E.2d 1175, 1178–79 (Ohio. Ct. App. 1992) (holding 

the attack and rape of the plaintiff by the three male students were not foreseeable where the 

plaintiff was in an unsupervised classroom after school hours and the perpetrators, who had no 

history of committing criminal assault to the degree or of the nature that took place, were told to 

leave and seen walking toward the school exit prior to the assault); Doe v. Big Walnut Local Sch. 

Dist. Bd. of. Educ., 837 F. Supp. 2d 742, 757–58 (S.D. Ohio 2011) (holding that defendants did 

not act with malice, bad faith, or wanton and recklessness where the school principal investigated 

incidents of bullying and devised a safety plan approved by the parents that apprised teachers of 

the harassment, adjusted the schedules of students involved in a fight with the plaintiff, and 

provided guidance counseling for the plaintiff each morning).
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In the instant case, the Shivelys have set forth facts demonstrating that Defendants’ 

actions were reckless under Ohio Rev. Code Ann. § 2744.03(A)(6). The Shivelys alleged that 

Defendants made the deliberate decision not to enforce school policies against bullying 

following several reports of harassment and violence against T.S., including a report that her 

name was on a “kill list,” and only provided an alternative school placement after T.S. left the 

school district. The Shivelys further allege that although they were told the perpetrator of the 

“kill list” would not be permitted to return to the school, he was permitted back on campus three 

weeks later. In contrast to the cases cited above, the Shivelys have provided evidence that the 

harm to T.S. was not only foreseeable, but likely given the escalating attacks she faced and the 

degree to which she was singled out for harassment. This is not a case where school officials 

declined to enforce draconian punishments on a troubled student who later perpetrates an 

unforeseen act of violence; rather, it is a case about refusing to apply school policy to protect a 

targeted student enduring harassment and violence. At this stage of the proceedings, the 

Shivelys have pleaded facts that, if proven, entitle them to recovery, and Defendants are not 

entitled to state-law immunity. See Wencho v. Lakewood Sch. Dist., 895 N.E.2d 193, 197 (Ohio. 

Ct. App. 2008) (holding the trial court properly denied defendants’ motion for judgment on the 

pleadings based on immunity where school officials knew of series of assaults, the attackers 

were not disciplined, the school took no action to assist the victim, and school officials blamed 

the victim for his “inability to deal with anxiety and stress.”). 

VI.

For these reasons, we AFFIRM the district court’s denial of qualified immunity to all 

individual Defendants on the Shivelys’ equal protection claim; AFFIRM the district court’s 

denial of statutory immunity to all individual Defendants under the Shivelys’ state-law claims;
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REVERSE the district court’s denial of qualified immunity to all individual Defendants on the 

Shivelys’ substantive due process claim; and REMAND to the district court for further 

proceedings.
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GRIFFIN, Circuit Judge, concurring in part and dissenting in part. 

Although I agree with the majority in most respects, I respectfully disagree with my 

colleagues regarding two issues. 

First, the majority finds no error with the district court’s blanket denial of immunity to all 

six individual defendants. I disagree. 

The Supreme Court has explicitly held that “[b]ecause vicarious liability is inapplicable 

to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 

official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 

676 (2009) (emphasis added). Similarly, 

“[t]his Court has consistently held that damage claims against government 

officials arising from alleged violations of constitutional rights must allege, with 

particularity, facts that demonstrate what each defendant did to violate the 

asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 

2008) (citing Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842 

(6th Cir. 2002)). We must analyze separately whether [the plaintiff] has stated a 

plausible constitutional violation by each individual defendant, and we cannot 

ascribe the acts of all Individual Defendants to each individual defendant. 

Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir. 2011). The test, therefore, is 

whether, reading the complaint in the light most favorable to the plaintiff, it is plausible that each 

individual defendant’s acts violated the plaintiff’s clearly established constitutional right. Id. at 

563–64. 

The district court failed to separately analyze the constitutionality of each defendant’s 

actions. Its failure to do so was error. Id. at 564. In the same vein, neither did the Shivelys 

“plead that each” individual defendant, “through [the individual defendant’s] own . . . actions” 

violated the constitution. Iqbal, 556 U.S. at 676. The Shivelys did make specific allegations as 

to defendants Booth, Nutter, and Lucas (a school principal and two superintendents, 

respectively). The Shivelys’ complaint alleges that these defendants had knowledge of T.S.’s 
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harassment and that they made decisions about the district’s response to that harassment. 

However, the complaint is deficient regarding defendants Wells, Miller, and Brown. The 

complaint does not allege any instances where Wells, Miller, or Brown were informed about 

T.S.’s harassment or that they made any decisions about how to respond to that harassment.

The majority concludes that it is proper to allow claims against Wells, Miller, and Brown 

to proceed, despite the complaint’s failure to make allegations regarding these defendants. I 

respectfully disagree. The majority reaches this conclusion on the theory that, because Wells, 

Miller, and Brown were administrators of the schools T.S. attended, it is reasonable to infer that 

they must have known about the harassment and made decisions in response to it. This, 

however, is precisely the type of inference that the law prohibits. Heyne, 655 F.3d at 564 (“We 

must analyze separately whether [the plaintiff] has stated a plausible constitutional violation by 

each individual defendant, and we cannot ascribe the acts of all Individual Defendants to each 

individual defendant.” (emphasis added) (citing Lanman, 529 F.3d at 684 and Hull v. Cuyahoga 

Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 512–15 (6th Cir. 1991)). For 

these reasons, I would hold that we should address the claims against Lucas, Booth, and Nutter, 

as they were properly pleaded. However, the claims as to Wells, Miller, and Brown should be 

dismissed because the Shivelys have not shown that they are entitled to relief against these 

defendants. 

Second, although I agree with the majority that the district court properly concluded that 

Lucas, Booth, and Nutter are entitled to qualified immunity on the Shivelys’ substantive due 

process claim, I write separately to emphasize that the majority does not hold that the Shivelys 

have established a substantive due process violation. Rather, it holds that, assuming the Shivelys 

did establish such a violation, the right at issue here was not clearly established. Therefore, the 
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majority’s rather extensive discussion regarding whether the Shivelys have established a due 

process violation is unnecessary. 

Moreover, in my judgment, the Shivelys could not establish a due process violation in 

any event. As the majority notes, generally “a State’s failure to protect an individual against 

private violence . . . does not constitute a violation of the due process clause.” S.S. v. Eastern 

Kentucky Univ., 532 F.3d 445, 456 (6th Cir. 2008). A failure of the state to protect a citizen is 

only cognizable if the plaintiff can establish that the “state-created danger exception” is met. 

This exception is satisfied if the plaintiff can show: (1) an “affirmative act[] by the state which 

either create[s] or increase[s] the risk that an individual will be exposed to private acts of 

violence”; (2) a “special danger”; i.e., that the state’s actions “place[d] the victim specifically at 

risk, as distinguished from a risk that affects the public at large”; and (3) that the state “kn[ew] or 

should have known that its actions specifically endangered the individual.” McQueen v. Beecher 

Cmt’y Sch., 433 F.3d 460, 464–70 (6th Cir. 1999) (internal citations and quotation marks 

omitted). 

Critical to the determination in this case is the first prong of the test—whether plaintiffs 

have alleged an “affirmative act[] by the state that either create[s] or increase[s] the risk that 

[T.S. would] be exposed to private acts of violence.” Id. at 464. Indeed, the Shivelys were 

required to allege that defendants took some affirmative act, but ultimately, their theory of the 

case is precisely the opposite—that defendants did not act, and that their failure to act is what 

permitted T.S.’s harassment to continue.1 The thrust of the Shivelys’ allegations are that Booth, 

Nutter, and Lucas knew about the violence and harassment to which T.S. was subjected and 

 

1

The closest the Shivelys come to alleging an affirmative act is when they allege that Booth “told Mrs. 

Shively that T.S. should fight a boy who was bullying her.” Whether this is enough to establish an affirmative act 

by Booth that increased the risk of danger to T.S. is questionable—even if we were to assume that this crosses the 

threshold from inaction to action (which is itself a generous assumption), the Shivelys do not allege that this 

“advice” from Booth actually placed T.S. in more danger than she was already.
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failed to act. Repeatedly, the Shivelys assert that defendants are not entitled to qualified 

immunity because “defendants did nothing to stop” the violence and “fail[ed] to address” the 

violence. However, this court has specifically held that a “failure to act is not an affirmative act 

under the state-created danger theory.” Cartwright v. City of Marine City, 336 F.3d 487, 493 

(6th Cir. 2003). See also Langdon v. Skelding, 524 F. App’x 172, 176 (6th Cir. 2013) (holding 

no affirmative state action where “[t]he facts merely show that [the government] did not do 

enough to investigate the complaints of [child] abuse, and this is a mere failure to act”); Jasinski 

v. Tyler, 729 F.3d 531, 540 n.5 (6th Cir. 2013) (opining that the plaintiff’s argument that the 

government’s failure to provide her with previous child protective service complaints was the 

plaintiff’s “least compelling argument for an affirmative state action”); Schroder v. City of Fort 

Thomas, 412 F.3d 724, 728–29 (6th Cir. 2005) (holding that the failure to respond to parents’ 

complaints about the failure to enforce a residential speed limit was not an affirmative act); 

Sheets v. Mullins, 287 F.3d 581, 588–90 (6th Cir. 2002) (holding that the failure to pursue a 

domestic abuse call was not an affirmative act); Weeks v. Portage Cnty. Exec. Offices, 235 F.3d 

275, 279 (6th Cir. 2000) (failing to call an ambulance for an injured citizen was not an 

affirmative act). Accordingly, I would also reverse the district court’s judgment on the basis that 

plaintiffs failed to establish a violation of T.S.’s due process rights. 

For these reasons, I respectfully dissent in part, but concur in the remainder of the 

majority’s opinion.